JUDGMENT This criminal jail appeal has been filed against the judgment & order dated 06.11.2007 passed by the Sessions Judge, Almora in S.T. No. 15 of 2004, whereby the appellants were convicted and sentenced to undergo R.I. for seven years and a fine of Rs. 3000/- each under section 304 Part II read with 34 IPC. It was further directed that in default of payment of fine, the appellants would further undergo one year’s R.I. each. 2. The facts, in nutshell, are that on 7.12.2003 at 12 noon, informant Chandra Ballabh Bhatt lodged an FIR alleging therein that on 7.12.2003 at about 12 Noon Ramesh Chandra has told him that when he and Girish Chandra were returning from the marriage of Km. Uma D/o Kishan Singh and when they reached Tok Mallagaon near the house of Diwan Ram all of a sudden appellants-accused Kundan Singh and Himmat Singh caught hold of Girish Chandra Bhatt and assaulted on his head due to which he fell down. It was further alleged that they have assaulted him with stones due to which he succumbed to his injuries. After that when the informant reached at the place of incident he found his son lying dead on the field. On the basis of the above-said written report, a Chick FIR was prepared and necessary entries were made in the general diary. The Investigating Officer visited the spot and prepared the site-plan Ex.Ka-4. After completing the investigation, the Investigating Officer submitted the chargesheet Ex.Ka. 12 before the court against the appellants under section 302 I.P.C. 3. After submission of chargesheet the appellants-accused were committed to the court of Sessions for trial and the trial court framed charges against the accused persons. They denied the charges levelled against them and claimed their trial. 4. The prosecution in support of its case examined as many as seven witnesses. PW1 Chandra Ballabh Bhatt is the informant and father of the deceased. PW2 Smt. Rekha and PW3 Ramesh Chandra are the alleged eyewitnesses, however they were declared hostile by the prosecution. PW4 Pooran Singh is the witness of Panchnama. PW5 Dr. J.C. Pandey is the medical officer Base Hospital, Almora, who conducted the post mortem of the deceased. PW6 Km. Neetu Bajetha is not the eye-witness of the incident and was declared hostile by the prosecution. PW7 Kailash Chandra Lohani is the Investigating Officer of the case. 5. PW4 Pooran Singh is the witness of Panchnama. PW5 Dr. J.C. Pandey is the medical officer Base Hospital, Almora, who conducted the post mortem of the deceased. PW6 Km. Neetu Bajetha is not the eye-witness of the incident and was declared hostile by the prosecution. PW7 Kailash Chandra Lohani is the Investigating Officer of the case. 5. The appellants have also adduced the evidence of Pooran Singh in support of their defence as D.W.1. 6. The accused persons were examined u/s 313 Cr.P.C. and they have pleaded not guilty to the offence. They have stated that on the date of the incident they were cooking food in the marriage and they have been falsely implicated in this case. 7. The accused-appellants in the trial eventually were convicted and sentenced by the trial court as mentioned above. 8. I have heard Sri Rajesh Joshi Amicus Curiae for the accused-appellants and Sri B.S. Parihar Brief Holder for the respondent-State. Perused the record carefully. 9. At the outset, it needs to be mentioned here that it is not disputed that the deceased died on account of ante-mortem injuries sustained by him on the date and time of the occurrence. Dr. J.C. Pandey PW5, Medical Officer examined the deceased at 1:35 p.m. on 08.12.2003 and found the following injuries on his person :- (i) Lacerated wound over right side forehead, 4 cm above right eye-brow and 5 cm lateral to midline of body. 4 cm x 2 cm in size, bone deep. (ii) Lacerated wound right side of skull 5 cm x 1.5 cm in size, bone deep, obliquely placed 19 cm above right eye brows and 6 cm lateral to midline. (iii) Lacerated wound 3 cm x 1.5 cm bone deep 19 cm above right eye brow and in the midline of the body. (iv) Lacerated 4.5 cm x 1.5 cm over back of skull (occiput). 20 cm above vertebral prominence. (v) Lacerated wound 4.0 cm x 2 cm over right side back of skull, bone deep, in the midline and 18 cm above vertebral prominent. (vi) Lacerated wound 10 cm x 2 cm over left side of back of skull bone deep 8 cm above and back to mastoid process. (vii) Lacerated wound 4 cm x 2 cm in size bone deep, 2 cm above © mastoid process. (vi) Lacerated wound 10 cm x 2 cm over left side of back of skull bone deep 8 cm above and back to mastoid process. (vii) Lacerated wound 4 cm x 2 cm in size bone deep, 2 cm above © mastoid process. (viii) Lacerated wound 3 cm x 2 cm in size bone deep over right side of jaw bone. 2.5 cm lateral to chin. (ix) Contusion right eye (black eye) (x) Abraded contusion over right super clavicular region in an area of 5 cm x 4 cm. (xi) Multiple contusion over right super clavicular region in an area of 5 cm x 4 cm. (xii) Abraded contusion over left side of back in an area of 22 cm x 12 cm slandering from inf. angle of scapula going obliquely downwards. In the opinion of Medical officer, the deceased died due to coma, shock, hemorrhage as a result of ante-mortem injuries. 10. The Medical officer has opined that all the injuries could have been caused by stones. All the injuries could have been caused at about 11:30 AM on 07.12.2003. Dr. J.C. Pandey PW5 has proved the postmortem report Ex.Ka.2. Thus, it is amply established that the deceased met a homicidal death on account of ante-mortem injuries sustained by him on the date of occurrence. 11. Now, I have to consider as to whether the appellants-accused were responsible for the injuries caused on the person of the deceased or not. The prosecution case rests mainly on the direct evidence. The prosecution in support of its case examined Chandra Ballabh PW1, who is the father of the deceased. He has stated in his evidence that on 07.12.2003 he received information from Ramesh Chandra PW3 and Smt. Rekha Devi PW2 that they saw his son Girish Chandra Bhatt being beaten by the accused persons on the way adjacent to the house of Diwani Ram. On the said information, he reached at the spot and found his son lying dead. Thereafter, the report was lodged. He is not the eye witness of the incident. According to the prosecution, Smt. Rekha Devi PW2 is the eye-witness of the incident. But she did not support the prosecution version and was declared hostile by the prosecution. She has stated in her examination-in-chief that she had not seen the appellant-accused and the deceased at the spot. He is not the eye witness of the incident. According to the prosecution, Smt. Rekha Devi PW2 is the eye-witness of the incident. But she did not support the prosecution version and was declared hostile by the prosecution. She has stated in her examination-in-chief that she had not seen the appellant-accused and the deceased at the spot. She also did not see the appellants while fleeing from the place of incident where the deceased was found dead. 12. Ramesh Chandra PW3 is said to have given the information to PW1 about the participation of the appellants-accused in the commission of offence and upon the killing of the deceased. He has stated in his deposition that on 07.12.2003 the incident occurred at about 11/11:30 AM while he was coming with the deceased and when he reached near the house of Diwani Ram, the appellants reached at the spot. Kundan Singh caught hold of the deceased and he was pushed at the spot. Thereafter he ran away from the place of incident. Thereafter, he reached at the spot at about 3 pm and found the deceased lying dead. Thereafter, he received the phone from Himmat Singh threatening him not to give evidence. He has also stated that the appellants did not assault the deceased in his presence. He was also declared hostile by the prosecution. He also denied about the statement given under section 161 Cr.P.C. The statement of witness can only be taken into account only to the extent that the accused and the deceased were coming together. He specifically stated that he had not seen the incident and he has also denied that the appellant assaulted the deceased on the date of incident. 13. Thus, the aforesaid three witnesses, out of which, Chandra Ballabh PW1 is not the eye-witness of the incident and Smt. Rekha Devi PW2 and Ramesh Chandra PW3, who are said to be eye witnesses of the incident, have not supported the prosecution version and they were declared hostile by the prosecution. The prosecution could not show as to how the incident occurred and the injuries were inflicted upon the deceased. Besides the above, PW6 Km. Neetu Bajetha has also not supported the prosecution case and she too was declared hostile by the prosecution. Consequently, the participation of the appellants-accused becomes doubtful. 14. The prosecution could not show as to how the incident occurred and the injuries were inflicted upon the deceased. Besides the above, PW6 Km. Neetu Bajetha has also not supported the prosecution case and she too was declared hostile by the prosecution. Consequently, the participation of the appellants-accused becomes doubtful. 14. The trial court has held in para 24 of the impugned judgment that undisputedly there is no direct evidence about the assault committed upon the deceased. The case rests upon the circumstantial evidence as per the trial court. The trial court has also narrated that Ramesh Chandra PW3 has only stated that the appellants-accused and the deceased were seen together at the spot. Second circumstance learned Sessions Judge has indicated that the death of the deceased was committed by assaulting him with stones. Third circumstance which the learned Sessions Judge has relied upon is that the blood stains were found on the clothes of accused Kundan Singh. Fourth circumstance there was an enmity in between the appellants and the deceased. 15. It is evident from the perusal of the evidence as discussed above that Ramesh Chandra PW3 at one place has stated that the appellants appeared and caught hold of the deceased and immediately thereafter he has stated that he had not seen the appellants at the spot and this witness was declared hostile. As such, the evidence of the above fact cannot be held to be reliable evidence at all. This evidence that the accused were seen at the spot is doubtful by his evidence itself. There is no ocular testimony of the witnesses that they saw the appellants assaulting the deceased with stones. Learned Brief Holder for the State could not demonstrate me that the alleged eye witnesses have stated that the deceased was killed by throwing stones on him. According to the post-mortem report, 12 injuries were found on the person of the deceased. Dr. J.C. Pandey PW5 has only opined that all the ante-mortem injuries are possibly be caused by stones. The medical officer has further opined in the cross examination that the cause of death of the deceased was coma, shock and hemorrhage as a result of ante-mortem injuries. He has also opined that the injury no. 6 could also be caused by felling down on the ground. The medical officer has further opined in the cross examination that the cause of death of the deceased was coma, shock and hemorrhage as a result of ante-mortem injuries. He has also opined that the injury no. 6 could also be caused by felling down on the ground. He has further opined that all injuries cannot be sustained by one fall, but it depends upon the physic of the deceased and the force used. It is also pertinent to mention here that the body of the deceased was not found on the road rather it was found outside the road on a filed. It is also pertinent to mention here that the site plan Ex.Ka.4 indicates the place ‘A’ where the dead body was found after the death. The incident occurred in the hill area and the field has been shown adjoining to the road. As such, it is evident that there is a slope at the spot. The I.P. has further clarified that the dead body of the deceased was found near the tree of Naspati (pears) at point ‘E’. Thus, in absence of the direct evidence, it cannot be held that the death occurred by assaulting the deceased with stones. 16. The clothes which have been recovered from the possession of appellant Kundan Singh, which he was wearing at the time of incident, had contained the blood stains. In the said clothes, human blood was found. There is no evidence that what was the blood group of the deceased and it cannot be held that even if the blood was found, then it was the blood of the deceased. Learned Sessions Judge in his judgment in para 40 has held that PW7 Kailash Chandra Lohani has stated that the said clothes was washed by the accused before taking into possession. If the clothes would have been washed then the blood stains would automatically be washed, thus there cannot be any blood stains on the clothes. As such, this fact also becomes doubtful. 17. Learned Sessions Judge has also relied upon the circumstance that there was a motive to commit the murder of the deceased. Chandra Ballabh PW1 has stated about the enmity in between the parties. By now, it is well settled principle of law that animosity is a double-edged sword. It cuts both sides. As such, this fact also becomes doubtful. 17. Learned Sessions Judge has also relied upon the circumstance that there was a motive to commit the murder of the deceased. Chandra Ballabh PW1 has stated about the enmity in between the parties. By now, it is well settled principle of law that animosity is a double-edged sword. It cuts both sides. It could be a ground for false implication and it could also be a ground for assault. Merely on the ground of motive, the accused cannot be convicted. If the other circumstances lead to take an inference that the appellants have committed an offence, then the motive becomes one of the circumstances to corroborate the above incident. It may be a chain in the said link. Thus, the entire evidence did not disclose about the participation of the appellants-accused in the above-said incident. 18. It was further contended by learned amicus curiae for the appellants that the learned Sessions Judge has indicated in its judgment that no conventional weapon for causing injury was found and that there was no intention of the death of the deceased and inspite of this, the learned Sessions Judge has convicted the appellants-accused u/s 304 Part II IPC r/w Section 34 IPC. Learned Brief Holder for the State refuted the contention of learned amicus curiae for the appellants-accused. I have indicated above that there was no direct evidence as to how the incident had occurred and how the accused-appellants participated in the incident. In the above context, it cannot be held that it is a culpable homicide not amounting to murder. Learned Sessions Judge committed an error in holding that the accused have committed an offence punishable under section 304 Part-II I.P.C. I have gone through the entire evidence on record and find that it did not give the correct picture of the incident. 19. In view of the foregoing discussion, I am of view that it would not be safe to convict the appellants-accused on the basis of such evidence. Therefore, the prosecution has not established the guilt beyond any reasonable doubt against the appellants-accused. I find that the learned trial court has erred in convicting and sentencing the appellants-accused. Hence, the appeal is allowed. The conviction and sentence awarded by the trial court against the appellants-accused are set aside. The appellants-accused are acquitted of the charges levelled against each of them. I find that the learned trial court has erred in convicting and sentencing the appellants-accused. Hence, the appeal is allowed. The conviction and sentence awarded by the trial court against the appellants-accused are set aside. The appellants-accused are acquitted of the charges levelled against each of them. Their bail bonds are cancelled and sureties are discharges. 20. Let the lower court record be sent back to the court concerned.