JUDGMENT By the Court.—Six accused persons were put on trial after being charged under various sections of I.P.C. So far as the present appellant is concerned, he was charged for commission of offences under Sections 148 and 302 I.P.C. Four accused persons, except the present appellant Bharat Singh and the deceased appellant Man Singh whose appeal abated on account of his death, were found guilty of committing the offence under Section 302 read with Section 34 I.P.C. The appellant was directed to suffer rigorous imprisonment for life, while the four others simultaneously tried by the learned IIIrd Additional Sessions Judge, Allahabad, in S.T. No. 80 of 1980, were acquitted by the impugned judgment dated the 20th of December, 1982. 2. We heard the present appeal which survives only on behalf of the appellant Bharat Singh, as the other appellant, Man Singh has died. 3. The informant Raghuraj Singh was the brother of the deceased Brij Raj Singh who was the Head Clerk in the Directorate of Education, Allahabad and was residing in a Government accommodation situated somewhere in Naini at Allahabad. This we get from the written report Ext. Ka-1 and also from the evidence of P.W. 3 Mahendra Pratap Singh, son of the deceased Brij Raj Singh. 4. As per the prosecution story the deceased had purchased a piece of land from one, Bhanu Pratap Singh, through a registered deed of sale and had taken over the possession of the property in the very year of occurrence i.e. 1978. It was stated that he was coming to his village on 7.7.1978 after office hours by train and was being accompanied by one Saval Singh (not examined) who happened to be the son of his brother-in-law (sala) as also by P.W. 3 Mahendra Pratap Singh, his son. As per the written report, it was striking 8:50 p.m. in the evening, the informant head the cries of ‘bachao, bachao’ coming from West-South direction of his village. He alongwith many others of his village rushed into that direction and in the torch light, found his brother Brij Raj Singh lying in the field of one Indra Bahadur Singh situated west of the village pathway. The informant stated that he saw the six accused persons, including the present appellant, assaulting his brother Brij Raj Singh with lathi and garasa. The informant stated that he saw the six accused persons, including the present appellant, assaulting his brother Brij Raj Singh with lathi and garasa. As regards the present appellant and the deceased appellant Man Singh, the informant, P.W. 1, specifically alleged that they were armed with farsa while others were having lathi with them. It was also stated by P.W. 1 that while the accused persons were dealing blows to his brother, they were simultaneously uttering that the deceased had purchased the land, so they would not leave him alive. The informant stated that his nephew, Man Singh, P.W. 3 was standing there and was shouting, as did the informant himself, as a result of which the accused persons ran away towards east. 5. The informant stated that leaving his brother at the site of occurrence, who had many injuries on his head, he came to the police station to file the complaint, Ext. Ka 1. 6. On the basis of Ext. Ka 1, FIR of the case, Ext. Ka 14, was drawn up by P.W. 5 Shukhdev Pandey and the investigation was taken over by P.W. 7 Tirathraj Pandey, during which course he took into his charge different articles like the three torches produced by P.Ws. 1, 2 and 3 respectively, in respect of which Exts. Ka-2, Ka-4 and Ka-5 were prepared. He also seized the blood stained clothes of the deceased and accordingly, prepared the senior memo, Ext. Ka 19. For the blood stained earth, and the garasa which was found lying on the ground Exts. Ka-20 and 21 were prepared. The lathi part of garasa was also found on the place of occurrence by P.W. 7 when he was inspecting it and the same was seized after preparing Ka-22. 7. The dead body of the deceased Brij Raj Singh was dispatched to P.W. 4 Dr. Vijay Pal Singh for post-mortem examination through P.W. 6 Chandra Bhan Singh, a constable and accordingly Dr. Vijay Pal Singh held post-mortem examination on 8.7.1978 at 5:00 p.m. and found as many as twelve incised wounds and three abrasions on the dead body. We want to skip to describe the individual injuries and want to point out that almost every incised wound was upto brain deep or upto bone deep and in spite of the absence of the opinion of P.W. 4 Dr. We want to skip to describe the individual injuries and want to point out that almost every incised wound was upto brain deep or upto bone deep and in spite of the absence of the opinion of P.W. 4 Dr. Vijay Pal Singh that any particular injury was individually or the injuries cumulative, could be sufficient in the ordinary course of nature to cause death, the very nature of the injuries individually and cumulatively could not be otherwise than sufficient to cause the death of the deceased. We also assume that it could be a lapse both on the part of the prosecutor as also the Court, as the Court could have questioned P.W. 4 for eliciting his opinion in that behalf as noted by us. The only inference as we recorded presently could be that the cause of death was sufficiently of the injuries recorded by P.W. 4. 8. The Investigating Officer P.W. 7 recorded the statements of witnesses during the course of investigation and finding the materials sufficient, filed charge-sheet against six accused persons, who were put on trial, which ultimately ended in the impugned judgment. 9. The defence of the appellant and other accused persons was that the death had not been caused by them by assaulting the deceased in the manner as was recorded by P.W. 4 the doctor, and they were impleaded in the case on account of enmity which was existing between the informant and the accused persons. The suggestion was that the deceased had been assaulted and killed sometimes after midnight at the place of occurrence by some unknown persons and utilising the incident as an opportunity, the accused persons had been impleaded falsely in the case. 10. After perusing the evidence of the prosecution, the learned trial Judge was partially discarding the prosecution story that accept the two appellants Bharat Singh and appellant Man Singh, the other four accused persons put on trial appeared not having participated in commission of the offence as the Court found the story of assault with lathi, which was alleged as against them, not trustworthy and acceptable. It has been one of the grounds which was submitted before us by the learned counsel for the applicant as the infirmity or the reason upon which the solitary appellant deserved to be acquitted. It has been one of the grounds which was submitted before us by the learned counsel for the applicant as the infirmity or the reason upon which the solitary appellant deserved to be acquitted. The learned trial Judge held that the two convicted accused, namely, the present appellant and Man Singh (the deceased appellant) had jointly attacked the deceased with garasa or farsa, as the case may be, and that part of the prosecution story was trustworthy on account of the evidence of three eye-witnesses P.Ws. 1, 2 and 3, as their evidences got substantial support on material parts by P.W. 4 Dr. Vijay Pal. We were taken through the evidence of the three witnesses. 11. It was contended by learned counsel for the applicant that Brij Raj Singh was indeed assaulted and killed, but it had appeared in the evidence of P.Ws. 1 and 2 that there were many persons with whom the family of the deceased was at loggerhead. Besides, the deceased and the witnesses were themselves accused in other serious cases which might be the reason and the background under which some other enemies of the deceased or his brothers could have found the deceased on a lonely place and attacked him to settle their scores. It was further contended that there was variation in the time of occurrence which was initially about 8:15 p.m. in the written report and that which was pointed out through the evidence of witnesses especially P.Ws. 1 and 3 and that also raised a doubt that they were probably imagining the situation of participation of the accused persons in assaulting the deceased and on account of suspecting them to be accused had implicated them. We were taken through the post-mortem examination report also and it was submitted that the number of injuries which were existing on the deceased when considered with manner of assault stated improbabilities and made doubtful the very manner of occurrence. 12. Learned A.G.A. submitted that there are three different versions coming from the mouths of three witnesses. However, those were only minor contradictions which do not go to the root of the matter and the learned trial Judge had rightly picked out the truth from for recording the guilt of the two accused out of the six. 13. 12. Learned A.G.A. submitted that there are three different versions coming from the mouths of three witnesses. However, those were only minor contradictions which do not go to the root of the matter and the learned trial Judge had rightly picked out the truth from for recording the guilt of the two accused out of the six. 13. We have gone through the evidence of P.W. 2, Vishwanath Singh, which appears at page 40 of the paper book, and find that there was some sort of enmity between the family of the deceased, on the one side and one Tulsi Ram Dubey and others, on the other, who were alleged to have committed the murder of one Baj Bhadur Singh. Not only that Takhat Bhadur and Baj Bahadur Singh also appeared to have filed a civil suit, which ended up in a decree and that decree was under appeal before this Court. Not only the two litigations, P.W. 2 has admitted in the same paragraph that there were other criminal cases also pending in which the family of the informant or P.W. 2 could be involved. 14. In additional to the above circumstances, this is an undeniable fact that witnesses are close relatives. It appears from the evidences of P.Ws. 1 and 2 that both the brothers had set out together to attend to the call of nature and had gone to the fields for that purpose. Likewise P.W. 3, who is said to be the son of the deceased, was also projecting himself as a casual traveller with his father who had decided to visit his village that evening. So, what we find is that while P.Ws. 1 and 2 appeared on the scene of occurrence by chance, P.W. 3 may also not be falling into a separate category. These circumstances have cautioned us to the maximum to approach the evidence with care. While considering the evidence of P.W. 1 and P.W. 2 and P.W. 3, we found that the evidence is consistent as regards the fact that the two convicted accused persons had dealt blows on the deceased with their respective weapons which have been described by P.W. 1 initially as a garasa. While considering the evidence of P.W. 1 and P.W. 2 and P.W. 3, we found that the evidence is consistent as regards the fact that the two convicted accused persons had dealt blows on the deceased with their respective weapons which have been described by P.W. 1 initially as a garasa. During the course of cross-examination he was confronted with the same question on the description of the weapon and he described the weapon, which was used by the convicted accused persons as garasa which was used for cutting fodder for cattle. If this could be the weapon which was really used by the accused persons, then we find that the weapon which the Investigating Officer seized was quite different from the one which was described by the P.W. 1. The iron blade which was the sharp cutting part of the weapon, which was seized by P.W. 7, the Investigating Officer. He had prepared the serizure memo, Ext. Ka-21, in respect to the seized part of the weapon. But, from our knowledge of day to day village life, we are pursuaded to hold that the description of the weapon, which was given by P.W. 1 as a chaff cutter, which is used by rural folk to cut fodder for the cattle and the garasa which was seized by P.W. 7 as the used weapon makes it clearly a weapon quite apart from the one which was described by P.W. 1 having been used by the convicted accused in assaulting the deceased. This is one aspect which has engaged our attention. Thus, we could be raising an inference that this indefinite story regarding the use of the weapon, which was given by P.W. 1 and in his evidence renders his description of the actual weapon used doubtful. This falsifies his claim of being present at the place of occurrence. Besides, what we find is that he was describing the garasi or the garasa as farsa and again he was qualifying the weapon farsa as the same weapon which is described in seizor memo. It is this line of evidence which was coming from P.W. 1 which was defying common intelligence and knowledge of weapons which one could derive from ordinarily observations of such things. 15. In addition to above the story told by P.Ws. It is this line of evidence which was coming from P.W. 1 which was defying common intelligence and knowledge of weapons which one could derive from ordinarily observations of such things. 15. In addition to above the story told by P.Ws. 1 and 2 varies from that which was stated by P.W. 3, the only witness who was accompanying the deceased right from his residence, from Naini upto the field of Indra Pal Singh. P.W. 3 was stating that his father was assaulted by the present appellant and Man Singh with garasa and farsa. We may point out that the P.W. 3 was stating about the use of both the weapons by the accused. Not only that, he stated further that he and Saval Singh raised hue and cries, hearing which his uncle the informant (P.W. 1) and P.W. 2-Vishwanath Singh rushed to the scene of occurrence and telling him not to be nervous, they were going. Thus what implies from the evidence of P.W.-3 as that P.Ws. 1 and 2 may not have seen the actual assault on the deceased either by this appellant or by Man Singh. Not only that P.W. 3 also added another story that the other accused persons were wielding lathis upon him, (P.W. 3) and his cousin Saval Singh. He further went on to say that the lathis were being weilded by other accused upon P.W. 3 and Saval both of them kept retreating back and could not, as such, be hit by the blows. If P.Ws. 1 and 2 were eye-witnesses, we could not find any such fact stated by them. 16. Saval Singh was projected as a witness by P.W. 3 by stating that while the father and son was about to depart from the residence of the deceased, Saval Singh also arrived from his village and on being informed that the deceased and P.W. 3 were embarking upon a journey to their village, he also expressed his desire to accompany them. Saval was the most important witness as appears from the written report and also from the evidence of P.W. 3. We could not have any reason coming from the prosecution as to why the prosecution had withheld Saval. Not only that the evidence of P.Ws. 1 and 2 indicated that many other villagers had also converged upon the place of occurrence. We could not have any reason coming from the prosecution as to why the prosecution had withheld Saval. Not only that the evidence of P.Ws. 1 and 2 indicated that many other villagers had also converged upon the place of occurrence. We constrained to note that the prosecution was again not producing any such independent persons especially the one who was named in the FIR, i.e. Ramnath Pasi who had rushed with a torch light to the scene of occurrence for witnessing it. Two persons were wielding blows with their weapons and the injuries which were recorded were as many as twelve in number. One of the weapons was found at the place of occurrence with a pair of chappals. The manner of assault appears not very elaborately brought on record, but whatever has been stated by the witness, like, P.Ws. 1, 2 and 3 could have convinced us that particular manner could have produced as many as twelve incised wounds. Worse was that P.W. 3 who was the only eye-witness who could not have been away from the deceased at any moment of time, was stating that no lathi blow was given to the deceased while the story of blow with lathi on the deceased was specifically appearing right from the F.I.R. till the evidence of P.Ws. 1 and 2. It is this contradictory manner of occurrence given by the three different witnesses who claimed to be eye-witnesses which rendered it utterly unsafe for us to sustain the judgment of conviction. 17. In the result, we allow the appeal and set aside the judgment and sentence passed by the learned trial Judge and acquit the appellant Bharat Singh. The appellant is on bail. He shall stand discharged from the liability of his bond. ——————