JUDGMENT By the Court.—The solitary appellant Asharfi was put on trial by the learned Sessions Judge, Bareilly for committing an offence under Section 302 I.P.C. The appellant was tried with acquitted accused Nanki after being indicted of committing an offence under Section 302/34 I.P.C. But by judgment dated 27.4.1982, it was the appellant who was found guilty of committing the offence under Section 302 I.P.C and after hearing the appellant under Section 235 Cr.P.C, the learned trial Court directed the appellant to suffer rigorous imprisonment for life. The appellant has preferred the present appeal to question the correctness of the findings and appropriateness of the sentence. 2. The prosecution case emanates from Ex.- 1, the written report of P.W.-1 Hemraj, who was the full brother of the deceased Mohan. As per the prosecution story, the two brothers were sleeping at the tea-stall run by them in a wooden Jhopari. It is stated that in between 2.00 a.m. and 2.30 a.m. when the informant was fast asleep, he heard the cries of his brother and woke up to find that the present appellant and his father Nanki armed respectively with Garasa and Suja (a sharp, round, pointed weapon) were attacking with their respective weapons his brother, Mohan. The informant claimed to have identified the two accused in the light of a lantern which was burning there and also stated that he attempted to catch them. However, the two accused made good their escape, but one of the prosecution witnesses, namely, Jhamman, (P.W.-3) who was attracted to the scene of occurrence and was coming with his torch light saw and identified the two accused in flash thereof. P.W.-3 also allegedly attempted to catch the accused, but could not. The informant stated that he came back to his shop and found that his brother Mohan was already dead and he had received injuries in his throat and head and those injuries were bleeding. 3. P.W.-3 also allegedly attempted to catch the accused, but could not. The informant stated that he came back to his shop and found that his brother Mohan was already dead and he had received injuries in his throat and head and those injuries were bleeding. 3. As regards the reason for the commission of offence, it was stated by the P.W. 1 that on 2.7.1980, the present appellant who had also a shop in the vicinity of that of the informant, had taunted at the deceased that his Bhabhi, i.e., the wife of P.W. 1, had run away from his house, as a result of which exchange of abuses ensued between the appellant and the deceased which was witnessed by Jhandu Singh (P.W.-5) and Babu Ram (P.W.-4) and by others also, who had been attracted there to at that particular time. 4. It appears that on the basis of Ex.-1, the F.I.R. of the case, i.e., Ex.-ka-3 was drawn up and the investigation was proceeded with, during which, the investigating officer seized the lantern but handed the same over to P. W. 9 as may appear from the evidence of P.W. 1. The investigating officer also seized the soil soaked with blood and other incriminating articles from the scene of occurrence after preparing the seizer memo, Ex. Ka. 9. It further appears that the blood stained earth and other articles were sent for chemical examination to the Forensic Sceince Laboratory and that report at page 11 of the paper book shows that the seized articles from the scene of occurrence were found carrying human blood as may appear from Ex. Ka. 11. 5. The dead body of the deceased was taken into custody by the investigating officer after preparing the inquest report and the same was transmitted to P.W. 7, Dr. I. J. Pachaury who found two injuries; one incised wound 6 cm x 1 cm on the front of neck, 5 cm below chin on external side underneath trachea dividing caritoid cartilege and the other incised would 1 cm x 0.5 cm x skin deep on left side of face, 3 cm in front of left ear. I. J. Pachaury who found two injuries; one incised wound 6 cm x 1 cm on the front of neck, 5 cm below chin on external side underneath trachea dividing caritoid cartilege and the other incised would 1 cm x 0.5 cm x skin deep on left side of face, 3 cm in front of left ear. Injury No. 1 was sufficient to cause death in the ordinary course of nature as per the opinion of P.W. -7 who further deposed that death had occurred instantaneously, as may appear from paragraph 3 of P.W.- 7 and the description of the wound in EX. Ka-2, the postmortem examination report. 6. After closing the investigation, the appellant with accused Nanki was set up for trial which ultimately resulted in the impugned judgment. The defence of the appellant was of innocence and false implication. 7. Sri P. N. Misra the learned counsel appearing on behalf of the appellant submitted that the learned trial judge while scanning the evidence of witnesses has held that P.W.- 2 Munna Lal and P.W.- 3 Jhamman Lal, were not reliable witnesses as may appear from the discussion of their individual and collective evidence at pages No. 24 and 25 of the judgment. It was contended that the rejection of the evidence P.Ws.- 2 and 3 by the learned trial judge indicated as if the judgment of conviction was passed on the solitary testimony of P.W.- 1, Hemraj, but on a deeper consideration of his evidence, it may be found that he was not a witness who could be held reliable. It was contended by Sri Misra that evidence of P.W. 1 was disbelieved qua the co accused Nanki and that was the reason for acquitting him. However, the acquittal of accused Nanki was ordered inspite of being alleged to have pierced Suja, as serious an allegation as may appear from paragraph No. 7 of P.W.-1. The other criticism of the evidence of P.W.-1 was that the eye-witness account rendered by him was completely contrary to the medical evidence and further that he was probably giving evidence on account of some apriori suspicion that it could be the present appellant, who had committed the offence. He could not have heard the cries of his brother, the deceased Mohan, who had received such a massive fatal injury as was described as wound No. 1 by P.W. 7. He could not have heard the cries of his brother, the deceased Mohan, who had received such a massive fatal injury as was described as wound No. 1 by P.W. 7. We were taken through the evidence of P.W.- 1 by the learned counsel for the appellant and also that of P.W.-2 so as to buttressing the above submissions. 8. The learned A.G.A, Sri Jai Prakas Narain Raj, resisted the appeal by submitting that the presence of P.W.-1 was natural and his story is convincing. It was further contended that the lodging of the report was very prompt. It could be eliminating the chances of consultation and deliberation so as to falsely implicating some innocent persons. It was contended that the evidence of P.W.- 1 in paragraph No. 7 could itself be sufficient to indicate that he was a wholly reliable witness. 9. Before we go to marshal the evidence of P.W.- 1, we want to point out that the purpose of considering the medical evidence is two fold. The prosecution can use the medical evidence so as to seeking corroboration to its case and the manner of occurrence alleged by it. As regards the defence it could also use the medical evidence to criticise the prosecution, by pointing out its failure in proving the charge to the hilt by further pointing out that the manner of occurrence as was alleged by prosecution, was completely improbable and thus rendering its version doubtful. In our considered view, a third inference could also be raised while considering the oral evidence and medical evidence together and that could be, that if the claim of the witness who has narrated the particular manner of occurrence, is completely belied by the medical evidence then there can be a difficulty in accepting the witness as an eye-witness. We also want to point out that merely because the report has been promptly lodged, it cannot always be a ground to assume that there could not be false implication of a person and further that the story cannot be disbelieved. Theory of innocence remains attached throughout to an accused as regards his trial and hearing of an appeal. We also want to point out that merely because the report has been promptly lodged, it cannot always be a ground to assume that there could not be false implication of a person and further that the story cannot be disbelieved. Theory of innocence remains attached throughout to an accused as regards his trial and hearing of an appeal. The presence of a witness is to be judged independently of the prompt lodging of the report and especially after considering the circumstances, which may appear from his evidence so as to probabilisiing or improbabilising his claim of seeing the occurrence. Keeping these principles in our minds we have proceeded to appreciate the evidence of P.W.-1. 10. P.W. 1 is the full brother of the deceased. The interestness could be there, but we are not concerned with that. We have proceeded under an assumption that he could not have any reason, particularly some serious ones, for falsely implicating the present appellant. However, when we proceeded to consider his evidence in its entirety the first thing which was found by us was that no specific evidence was given by P.W-1 as to which part of the body was hit by the appellant Asharfi by Garasa and which part of the body was pierced with Suja by co accused Nanki. The evidence remains anomalous and indefinite. Inspite of that we have proceeded to assume that the injury on his throat was caused by a heavy sharp weapon, may be a Garasa, so as to causing such an injury or a wound as was described by P.W.-7. Then in that view we have also to consider the evidence of P.W.- 7 in cross-examination in paragraph No. 5 that after having received injury No. 1 the deceased had died instantaneously and he could never have spoken. If this was the evidence of P.W. 7, then the ordinary inference could be that he would have never cried out and, as such, there could not have been any reason for P.W- 1 to awake. That part of evidence of P.W. -7 in paragrph No. 7 is very tell tale. P.W.- 1 has stated that when he heard the voice of his brother, stating that he had been killed, he woke up to find that his brother was lying and the two accused persons were over him and were assaulting him. As regards the manner of assault, PW. P.W.- 1 has stated that when he heard the voice of his brother, stating that he had been killed, he woke up to find that his brother was lying and the two accused persons were over him and were assaulting him. As regards the manner of assault, PW. 1 stated that the present appellant was giving blows with a Garasa whereas the acquitted accused Nanki had pierced his Suja. As soon as he got up, the two accused persons started running away. The description of weapons, specially, that of Suja indicates as if it were fitted with a Lathi measuring about 5 to 6 ft. That description probably could give an impression as to what force would have been generated by that weapon when it was used for giving a blow by piercing it into the body of the deceased. We have already pointed out that parts of the body which were hit by Garasa and Suja has not been clarified or specified by P.W.-1. When we consider the evidence of the Doctor we find no injury caused by piercing a Suja and that too when it was fitted into a Lathi measuring about 5 to 6 ft. 11. The learned A.G.A contended that the lantern was seized and considering the seizer memo, it may also be true that it was there at the scene of occurrence and further that it was lighted and thus facilitated the identification of the culprits. But we are not on that particular aspect of the case. What has engaged our attention is the manner of occurrence and giving blows with their respective weapons by the two accused persons. We have further been alerted by the statement of P.W.-1 and the evidence of P.W.- 7, the Doctor. P.W.-1 stated that he heard the cries of his brother, which claim appears to us improbable or rather unacceptable in the light of the evidence of P.W.- 7 when he was stating to the Court that after the deceased had received injury No. 1, he would have died instantaneously making it impossible for him to utter a word. The piercing of Suja does not get corroboration from the evidence of P.W.- 7. The piercing of Suja does not get corroboration from the evidence of P.W.- 7. This finally comes out of the consideration of the evidence of P.Ws.- 1 and 7 as if the informant were not present at the scene of occurrence or was in fact giving a story spinning it out of his imagination. 12. He has stated in his evidence in paragraph No. 6 that the accusation by the appellant, thrown in the face of the deceased regarding the story of the informant’s wife having run away from the house had generated ill will in him. Moreover, the prosecution evidence itself indicates that the abusive accusation was made by the present appellant in the face of the deceased and other persons and the same had engaged the attention of the village people (P.W.- 1 in paragraph No. 6.). We may assume that P.W.- 1 would have felt deeply hurt and must have carried grudge and ill will towards the appellant. Ours is a society in which we are influenced by very trifle matters and on those scores carry some ill will or jump to unfounded inference about person or persons. Due to those wrong opinions or inferences we are known act to assume that a particular person had carried some ill will or had motive for committing a particular act and, as such, as and when we get an opportunity, we do not hesitate in implicating a person in a serious charge. The manner of occurrence as indicated by the evidence and opinion of P.W.- 7, the Doctor, convinces us that the deceased must not have been in a position to utter a word and the informant was never awakened by the voice of his brother as he claimed. May be that after having found his brother dead P.W.-1 was acting on an apriori suspicion that it was this appellant and his acquitted father Nanki who had perpetrated the act. Under the discussion of the evidence which we have just made, we find the appeal meritorious. It was a case in which the appellant ought to have been extended the same benefit of doubt which was extended to co-accused Nanki. In the result we allow the appeal and set aside the order of conviction and sentence passed upon the appellant by acquitting him. The appellant is on bail. He shall stand discharged from the liability of his bond. —————