Pankaj Naqvi,J.:- The present government appeal arises out of the judgment of acquittal dated 18.2.1981 passed by the learned Sessions Judge, Mathura in Sessions Trial No. 206 of 1980 by which the respondents Dhan Pal alias Sidhnath and Nand Lal alias Nando were acquitted of charge under Section 302/34 IPC and respondent Kunj Lal alias Goli was acquitted of charge under Section 302 IPC. 2.The prosecution case emanated from the written report (exhibit Ka-6) filed by Prabhu Dayal (P.W.3) before the Officer Incharge of Kotwali Police Station, Mathura in which it was alleged that a litigation in respect of Khelawali orchard was pending between respondent Kunj Lal alias Goli and the informant. Criminal cases had also cropped up on account of the dispute for the orchard which was described as Khelawali Bagichi due to which the accused persons were carrying ill-will and animosity towards the informant and his family. 3.The informant stated that on 15.4.1980 he along with Kunj Bihari alias Kunjo (P.W.4) and his elder brother Dau Dayal (the deceased) started from the house of his Mausi (his mother's sister) situated at Talpura for the house of his maternal grand-mother situated in Mohalla Bishramghat and they were going through Chhata Bazar road. It was at about 5 P.M. when the informant and the deceased along with Kunj Bihari (P.W.4) had reached in front of the lane, described by him as Bheekam Chandra Seth Gali that respondent Kunj Lal alias Goli armed with a ballam and his elder brother Dhanpal alias Sidhnath armed with a lathi and Nand Lal alias Nando armed with Farsa came there seeing the informant and his companions and respondent Dhanpal remonstrated by hurling abuses at deceased Dau Dayal that he should not be spared. It was stated that respondent Nand Lal attempted a blow with Farsa upon Dau Dayal but he evaded it and saved himself, but in the mean time respondent Kunj Lal alias Goli pierced his Ballam into the stomach of deceased Dau Dayal. The informant, Kunj Bihari (P.W.4), one Chandra Prakash (not examined) and Shiv Lal alias Shibbo (P.W.11) and some others, seeing the occurrence, raised alarm and tried to save him when the accused persons ran away into the same lane from where they had emerged to assault the deceased. It was also stated that before they had left, respondent Dhanpal had attempted a lathi blow upon the deceased. 4. It was also stated that before they had left, respondent Dhanpal had attempted a lathi blow upon the deceased. 4. It appears from the evidence of P.W. 12, S.I., Babu Lal Yadav who was posted in Kotwali Police Station, Mathura on 15.4.1980, that on receipt of the written report (exhibit Ka-6) the F.I.R. was drawn up and the investigation was handed over to him. He came with informant Prabhu Dayal (P.W.3) to Mathura Hospital but found that Dau Dayal had been referred to Agra Hospital and had been sent to Agra. He thereafter came with P.W.3 to the place of occurrence and recorded the statement of the informant (P.W.3) and dispatched police force to search the accused persons. He called Shiv Nath alias Shibbo (P.W.11) and several other persons at the place of occurrence and recorded their statements. He, thereafter, inspected the place of occurrence and recorded the description by preparing the sketch map (Exhibit Ka-17). In spite of being searched, the accused persons could not be arrested and processes under Sections 82 and 83 Cr.P.C. were obtained by P.W.12 to force the appearance of the accused persons before the court below. P.W.12 received the injury report of Dau Dayal from Mathura Hospital on 23.4.1980. The investigating officer went to the surgical department of Sarojani Nayadu Hospital, Agra and recorded the statement of the injured Dau Dayal on 26.4.1980. The statement of injured Dau Dayal has been marked as exhibit ka-18. P.W.12 learnt that accused Nand Lal and Dhanpal had surrendered themselves to the custody of the Court and, accordingly, he recorded their statements and executed the process of attachment and attached the properties of respondent Kunj Lal on 30th April, 1980. Inspite of making efforts, P.W.2 could not get into his custody the bed-head ticket and other documents relating to the treatment of Dau Dayal from Sarojani Naidu Hospital, Agra and on 15.6.1980 he submitted the charge- sheet after completing the investigation. 5. It may be of some importance to note that initially the case was registered and investigated into only for an offence under Section 307 IPC but the deceased died on 9.5.1980 in Sajojni Naidu Hospital, Agra and Section 302 IPC was added to the FIR. 6. The defence of the accused was of false implication on account of admitted land dispute and pending criminal cases. 7. 6. The defence of the accused was of false implication on account of admitted land dispute and pending criminal cases. 7. In support of the charges, the prosecution examined as many as 12 witnesses out of whom P.W.3 Prabhu Dayal, the informant of the case, P.W.4 Kunj Bihari alias Kunjo and P.W. 11 Shiv Nath alias Shibbo Singh Yadav were the eye witnesses to the occurrence. P.W. 1 constable Ajai Vir Singh had carried the dead body of deceased Dau Dayal from the surgery ward upto the mortuary for post mortem examination whereas P.W.2 S.I. Gajraj Singh had drawn up the sketch-map of the dead-body for sending the same along with the dead-body challan to the mortuary for facilitating post mortom examination by the doctor. Constable Raghuraj Singh (P.W.5) had drawn up the FIR and Head Constable, Narendra Singh (P.W.6) had made entries in the general diary regarding the insertion of Section 302 IPC and forwarded a report in that regard to the court. 8. Constable Gaya Prasad (P.W.7) had taken the seized articles, like, the clothes of the deceased for chemical analysis to the laboratory and Dr. Daulat Ram Sen (P.W.8) was the doctor who had initially examined Dau Dayal when he was brought to Mathura Hospital just after the incident and had issued the medical report (exhibit K-11). Dr. K.P. Singh (P.W.9) had held post mortem examination on the dead body of the deceased, Daud Dayal, whereas Dr. Chandra Bhushan (P.W.10) was the surgeon who had treated him in Sarojani Naidu Hospital, Agra and had performed surgery for repairing the internal damages of the intestines of the deceased which had occurred due to the piercing of ballom into the stomach of Dau Dayal. As we have already noted S.I. Babu Lal Yadav (P.W.12) had investigated the case. 9. A solitary defence witness Nawal Kishor Sahi was examined who stated that accused Dhanpal had delivered a discourse on the text of Shrimad Bhagwat during which course respondent Kunj Lal was performing the "Jaap" in between 12-4-1980 to 18.4.1980. Thus, what P.W.1 was stating was that respondent Kunj Bihar could not have been present at the scene of occurrence. 10. After considering the evidence of prosecution and the defence, the learned trial Judge held that the witnesses were partisan and also chance witnesses. The FIR was suspicious and collusive whereas the place of occurrence had not been substantiated. Thus, what P.W.1 was stating was that respondent Kunj Bihar could not have been present at the scene of occurrence. 10. After considering the evidence of prosecution and the defence, the learned trial Judge held that the witnesses were partisan and also chance witnesses. The FIR was suspicious and collusive whereas the place of occurrence had not been substantiated. The worst in the opinion of the learned trial Judge was that the medical evidence and oral testimony were at criss-cross with each other and the evidence was beset with enumerable improbabilities and co-incidences which made the prosecution case highly doubtful and on these scores held that the accused persons deserved to be acquitted after being given benefit of doubt as the case suffered from grave doubt. 11. The scope of the jurisdiction of an appellate court was considered by the Privy Council in many cases and lastly all cases were simultaneously considered by the Supreme Court in Sanwat Singh Vs. State of Rajasthan reported in AIR 1961 SC 715 . In some of the decisions, which were rendered before Sanwat Singh, some of the courts observed that some substantial compelling reasons were to be assigned so as to setting aside the judgment of acquittal. Besides, some of the courts observed that good and sufficiently cogent reasons as also strong reasons were required to be assigned by the appellate court before it had embarked upon upsetting the judgment of acquittal passed in favour of an accused. Some of the decisions which were making the above observations regarding substantial and compelling reasons, good and reasonably cogent reasons or strong reasons included a decision also of Privy Council in Sheo Swarup's case reported in AIR 1934 P.C. 227. Some of the decisions which were making the above observations regarding substantial and compelling reasons, good and reasonably cogent reasons or strong reasons included a decision also of Privy Council in Sheo Swarup's case reported in AIR 1934 P.C. 227. The Supreme Court considered all the decisions which were making the above observations regarding the nature and quality of reasons which were to be assigned by the appellate court and lastly summed the legal position up in paragraph 9 of the report which appears at page 719 of the report in Sanwat Singh are tempted to quote that particular para:- "The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup's case, 61 Ind App 398 : (AIR 1934 PC 227 (2) afford a correct guide for the appellate court's approach to a case in disposing of such an appeal, and (3) the different phraseology used in the judgments of this Court, such as, (I) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons", are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified." 12. Thus, it was finally laid down in Sanwat Singh's case (supra) that the appellate court is empowered in an appeal against acquittal to review the entire evidence and to come to its own conclusion, but, while doing so it must not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts but should also express those reasons in its judgment which led it to hold that the acquittal was not justified. 13. 13. This principle which was laid down by the Supreme Court as regards the reappraisal of evidence to be made by an appellate court is not a new principle, rather if we digress a bit to traverse into the realm of civil jurisprudence regarding the principles to be adopted in deciding appeals then we may find that the same principles were being reiterated by the Supreme Court in Sanwat Singh which are to be observed and kept in mind in deciding civil appeals specially an appeal in which the appellate court is inclined to reverse the findings and the decree passed by a subordinate civil court which also enjoins upon an appellate court not only to consider the findings of the court but also consider the reasons assigned by the trial court in a civil suit to pass the decree and if it is inclined to reverse the findings and to set aside the decree then the civil appellate court has first to reversed the inference which has been drawn by the appellate court on the basis of the evidence and then to reverse its findings. Considering, as such, the above principle, we have embarked upon finally to review the evidence by making a re-appraisal of the same so as to considering the submissions. 14. Sri A.K. Srivastava, the learned A.G.A. who appeared on behalf of the State of U.P. in support of the appeal was taking us through the evidence of three witnesses; P.W's. 3,4 and 11 as also the doctors who had either treated the deceased or had attended on him initially or had held post mortem examination besides that of the investigating officer and then had pointed out as to how the findings which were recorded by the learned trial Judge in passing the judgment of acquittal could be said to be perverse. 15. As against the above, Sri P.N. Mishra, learned senior counsel appearing on behalf of the respondents was submitting that there were a number of enemies which the deceased had earned on account of the criminal behaviour he had exhibited in the past as also for the dispute for the orchard and it could never be the present set of respondents only who could have committed his murder. It was further submitted that the witnesses were highly interested and they could have the tendency of falsely implicating the innocent respondents and the learned trial Judge had considered that aspect besides having considered the circumstance that no blood was found at the place of occurrence and the witnesses were giving varying evidence as regards the place where the occurrence had taken place. Sri Mishra was further contending that the witnesses, specially P.W.11, could not be trusted and their evidence has rightly been rejected by the learned trial Judge. In the alternative Sri Mishra was pressing before us a Supreme Court judgment reported in 1995 Supplementary (3) SCC 708 State of Punjab Vs. Bira Singh and others to submit that if this Court is ultimately convinced that it could be a case in which the judgment has to be upturned, then this Court should hold that an offence only under Section 304 Part II IPC was made out and applying the principles of Bira Singh, the Court should instead of inflicting substantive sentence of imprisonment on the respondents, should award appropriate compensation. While so submitting Sri Mishra was further pointing out to us that the evidence that Farsa blow attempted by Nand Lal alias Nando did not fall on the deceased and the deceased also was not hit by the Lathi blow attempted by respondent Dhanpal alias Sidhnath. These two respondents deserve to be acquitted as there could always be a chance of false implication of these two accused persons. 16. It is true that witnesses, like, P.W.3 Prabhu Dayal who was none else than a full brother of the deceased and Kunj Bihar alias Kunjo P.W.4 appear to be highly interested persons. Interestedness could never be equated with being related. The meaning of the term "Interestedness" indeed is that if there is a litigation in which the witnesses were deposing, then the Court has to see as to whether the witnesses could have the interest, by deposing in the criminal trial, to ensure that the accused persons were convicted and sentenced or a particular decree was passed on account of holding some stake in the prosecution of a criminal charge or in the decree to be passed in a civil suit. Mere relationship, as we have just noted, could never be said to be interestedness in real terms as regards appreciation of evidence and the assessment of the merit of the same. If we consider the evidence of P.W.3, there is no dispute in it that the deceased Dau Dayal was the elder brother of P.W.3 Prabhu Dayal and like wise on considering the first line in the evidence of P.W.4 there is no doubt that he was also very closely related as Dau Dayal, deceased, was the son of the Bua of P.W.4 (father's sister of the witness). As such, the two were closely related by blood to the deceased. But, as we have just noted, merely because someone was related may not be sufficient to hold such a person interested in the case unless they had some real interest in the result of the prosecution. On account of the blood relationship the two witnesses had had with the deceased, there may not be any doubt that they may also be interested in the result of the criminal proceedings which was carried out during the trial of the present case. But we are aware that merely being interested may not be a disqualification of a witness. What the Court has to do is to appreciate their evidence with caution and ensure that every defect in the prosecution case is found out and the allowance of that defect in the prosecution evidence should result in the non-acceptance of the evidence of the witnesses. 17. P.W.3 in his evidence in paragraph 2 has given the relationship between the accused persons and in paragraph 3 he has stated that the relationship of his family, specially, that of the deceased with the three respondents was very cordial earlier, but for any particular reason the respondents had put their greedy eyes over the orchard located at Dampiar Nagar which was being resisted by the deceased and, as such, the relationship between the two families, that of the deceased on the one hand and the accused on the other, started deteriorating. There were some minor incidents also for which the reports were lodged by the mother of the informant and subsequently it appears that the situations started aggravating as a result of which some serious offences were reported by either of the sides against each other. There were some minor incidents also for which the reports were lodged by the mother of the informant and subsequently it appears that the situations started aggravating as a result of which some serious offences were reported by either of the sides against each other. These facts have been admitted by P.W.3 in his examination-in-chief itself while he was making statements regarding institution of different proceedings or FIRs either by him or the deceased on the one hand and the accused persons on the other. It was stated by P.W.3 that in the above background when he along with P.W.4 and the deceased was coming back from Mohalla-Talpura from the house of his mausi (mother's sister) and was going to his Nanihal situated in Vishramghat and were in front of the lane known as Seth Bheekam Chandra Lane at about 5 P.M., the accused persons, among whom Kunj Lal alias Goli was armed with Ballam, Nand Lal alias Nando was armed with Farsa and Dhanpal alias Sidhnath was armed with Lathi, came out of the Bheekam Chandra Lane and at the remonstration of Dhanpal that the deceased Dau Dayal should not be spared and further ordering to assault and kill him, the three, i.e., the informant P.W.3, the deceased Dau Dayal and P.W.4 Kunj Bihari started running towards Vishramghat and were chased by the accused persons. P.W. 3 stated that he and P.W.4 ran ahead of deceased and after turning around found he had lagged behind and further found that Nand Lal alias Nando had attempted a Farsa blow but the deceased evaded from being hit and during that course respondent Kunj Lal alias Goli pierced his Ballam into the stomach of the deceased. Respondent Dhanpal also attempted a lathi blow but that did not hit the deceased Dau Dayal. 18. The same evidence has been given by P.W.4 Kunj Bihari alias Kunjo and during the course of hearing of the appeal, while we were being taken through the cross examination part of the evidence of witnesses P.W's.3 and 4, what we find was that there was no contradiction or any fact which could be said minimizing the effect of the evidence given in examination-in-chief by P.W's. 3 and 4. P.W.3 was cross-examined as to what was the purpose for going to the house of his Mausi and it appears from paragraph 22 that he had gone there for realizing some money which had been borrowed by his Mausi. P.W.3 was cross-examining further as to who had indeed asked for paying back the borrowed amount when he stated that it was the deceased Dau Dayal while P.W.3 and P.W.4 kept themselves aloof of the discussion by sitting at a different place. When we considered the evidence of P.W.4, we find that he was running a ration shop, may be under the public distribution system, and he had to deposit certain amount in the State Bank of India for getting rations and he was short at money and, as such, had gone to the mother of the deceased on the very day of the incident was a request to lend to him the required amount who had asked him that he should go with Dau Dayal to Talpura and take the money from her sister and that was the reason that he accompanied the deceased and the informant to the house of their Mausi but could not get any money and did not deposit the money in the State Bank of India. This we get from paragraph 7 of the deposition of P.W.4. Thus, what we find is that there is a reasonable nexus in reasons which were assigned by P.Ws.3 and 4 for coming together and going together to the house of the Mausi of the informant which was situated in Mohalla Talpura and, as such, the criticism which was made by the learned counsel appearing for the respondents that they were the chance witnesses, to us does not appear acceptable. A chance witness is one who appears at the scene of occurrence without any purpose and, as such, by chance. However, if a witness who claims his presence on the place of occurrence assigns plausible and acceptable reason for remaining present on or around the scene of occurrence, in our opinion, such a witness could not be said to be a chance witness. Here, the two witnesses appear giving a plausible purpose of going to Talpura and coming back from there, during which course the incident appears having taken place. Here, the two witnesses appear giving a plausible purpose of going to Talpura and coming back from there, during which course the incident appears having taken place. In that view of the matter, we do not find ourselves persuaded to accede to the submissions of Sri Mishra, the learned senior counsel appearing for the respondents that P.Ws. 3 and 4 could be chance witnesses and their evidence merited rejection. 19. Enmity of course was there, but it was not only the accused persons with whom the informant or the deceased could be inimically disposed, specially, for one particular reason which was highlighted by Sri Mishra the learned senior counsel appearing for the respondents when it was contended that there were many families and persons who were interested or were indeed interested in the Khelawali Orchard for which there was a litigation between the family of the informant and the accused persons. Infact when we consider the evidence of P.W.1 in paragraph 19 we find that there were 40-50 other families which were claiming interest individually in the orchard and, as such, it could not be the accused persons only against whom the informant or his deceased brother could be having any ire or ill will. In that view of the matter, merely the pendency of the litigation, both on civil and criminal side, in our opinion, could not be said to be sufficient specially in view of the reasons which we have just accepted to reject the evidence both of P.Ws. 3 and 4. 20. As regards the evidence of P.W.11, we must record that his evidence never inspired our confidence. As was the case when the court below was also rejecting his evidence, admittedly, it was a day when the shops around the place of occurrence were shut down as it was a weekly holiday in the market except a few eateries and Panwalas were doing business. P.W. 11 Shiv Nath alias Shibbo Singh Yadav had given the reason for his appearance near the place of occurrence because he was to organize a Ramayan Path and he had to get his house decorated and he had been asked by the decorator, namely, Tole to come on that weekly closure day of the market as he may be present around his shop. Tole is the FIR-named witness Chandra Prakash alias Tole, who was not examined. Tole is the FIR-named witness Chandra Prakash alias Tole, who was not examined. It is not denied that Tole was running a decoration shop and was carrying on a business of decoration, but what appears to us is that the witness did not hire anyone to decorate his house and appears going through his Ramayan Path without any decoration. One may say that the Ramayan Path might have been carried out without any decoration, but that is not the only aspect of the evidence of P.W.11. He was cross-examined on more details on the reason which was assigned by him of remaining present at the scene of occurrence. He was questioned as to who was the Pandit who was to recite the Ramayan. He said that he did not remember his name though the Pandit had indeed been engaged by him who had also been paid some Dakshina. Not only that he was also not able to tell the court as to what part (Kand as we call it) of Ramayan had been recited during its recital and again he was telling the court that he could not say as to who was it. Moreover, some Mohalla people who had participated in the Ramayan Path had not come forward to support the fact that indeed there was some Ramayan recital in the house of P.W.11. On these premises, what we find is that it is doubtful that P.W.11 had indeed organized any recital of Ramyan and for that he could have any necessity of going into the market-place to higher any decorator so as to decorating his house. The learned trial Judge appears noting these facts correctly and, in our opinion, was perfectly justified in doubting that he was a set up witness for any particular reason. 21. The learned trial Judge was noting that the evidences of witnesses were contradictory to each other as also the same was contradictory to the medical evidence. There were three doctors who had attended upon the injured Dau Dayal. It was P.W.8 Dr. Daulat Ram Sen who had first attended on the deceased and had found, as may appear from his evidence, a solitary incised wound 5 c.m. x 2 c.m. Incised would 5 c.m. X 2 c.m. upto cavity deep on the lower part of the chest and upper part of abdomen vertically 10 c.m. above and lateral to the umbilicus. Daulat Ram Sen who had first attended on the deceased and had found, as may appear from his evidence, a solitary incised wound 5 c.m. x 2 c.m. Incised would 5 c.m. X 2 c.m. upto cavity deep on the lower part of the chest and upper part of abdomen vertically 10 c.m. above and lateral to the umbilicus. The opinion in respect of the weapon which could have caused the injury and the nature of the injury was kept reserved, but it was opined by P.W.8 that some sharp edged weapon had been used in causing the injury. The evidence of P.W.10, Dr. Chandra Bhushan, reveals that the deceased required surgical attention for repairing the wound and he had carried out surgery on Dau Dayal who was admitted in Medical College, Agra as it was found after investigation that surgery was required to be performed on him for appropriately treating him. Accordingly, the surgical operation was carried out on Dau Dayal by P.W.10 Dr. Chandra Bhushan Nigam along with his colleagues Dr. S.P. Goyal and Dr. O.P. Upadhyaya and during that course it was found that the small intestine of Dau Dayal was bearing two perforations on account of cutting of the intestine and, as such, the damaged intestine was cut and repaired. The transverse colon which is the part of the large intestine of a person, was also found bearing two perforations situated side by side on it and, as such, the damaged part of the transverse colon was also cut and joined together so as to repairing the damage. P.W.10 stated that some out let was created into the abdomen of the deceased, Dau Dayal, so that the fecal-matter could come out of the intestine during the healing process of the wounds. The evidence of P.W.10 further reveals that there were further damages both in the mesentery which was found cut at one place and the diaphragm which was found torn. In addition to the above internal damages one rib was also found cut. From the evidence of P.W.10 it is revealed that after surgery was performed Dau Dayal recovered and all of a sudden on 9.5.1980, he vomitted blood and his condition deteriorated and inspite of the best efforts made by P.W.10 and others, he could not be saved and he died on 9.5.1980 at 7.45 P.M. 22. As regards the evidence of Dr. As regards the evidence of Dr. K.P. Singh (P.W.9) who held post mortem examination on the dead body of the deceased, he had found as many as 5 incisions in the form of wounds on it which were as follows: (i)The first was a piercing wound measuring 2-1/2 inch x 1-1/4 inch upto stomach cavity deep on the left side of stomach, six inches below the left niple. (ii)Stitched wound 1-1/2 inch x 1 inch on the right side of the stomach two inches above the umbilicus situated at 11 o' clock position. (iii)Stitched wound 1-1/2 inch x 1-1/2 inch upto stomach cavity deep through which the some part of the intestine was coming out which was covered with cotton. (iv)Cut stitched wound created for giving the drips measuring 1/2 inch x 1/10 inch on the internal part of the left ankle. (v)Similar cut stitched wound created for giving the drips measuring ½ inch x 1/10 inch on ventral sides of the left ankle. 23. Thus, what we find after considering the evidence of the three doctors, is that infact Dau Dayal had only one piercing wound which had been caused by piercing sharp-edged weapon as a result of which not only the intestinal part of the internal organ had been cut and damaged but one of the ribs had also been cut. The other injuries which were recorded by P.W.9 Dr. K.P. Singh who held post mortem examination are fully clarified and explained by the very evidence of P.W.9 when he was noting that the injuries could be created on account of openings which were created by the attending surgeon P.W.10 Dr. Chandra Bhushan as appears from his evidence so as to allowing the fickle matter to come out or for giving the drips or for draining the other west materials out of the body. We do not have any doubt that it was one single wound which was present on the person of the injured Dau Dayal which has appropriately been described by P.W.8 Dr. Daulat Ram Sen and which, in his opinion, had been caused by some sharp edged-cutting and pointed weapon. 24. We have already seen the evidence of P.Ws. We do not have any doubt that it was one single wound which was present on the person of the injured Dau Dayal which has appropriately been described by P.W.8 Dr. Daulat Ram Sen and which, in his opinion, had been caused by some sharp edged-cutting and pointed weapon. 24. We have already seen the evidence of P.Ws. 3 and 4 both of whom had stated that it was respondent, Kunj Bihari alias Goli who had pierced his Ballam while Dau Dayal was attempting to evade the blow which was attempted on him with Farsa by respondent Nand Lal alias Nando. The learned trial Judge was noting that the medical evidence was completely contradicting the oral evidence. We do not find the case such as was noted by the learned trial judge. We have just discussed the medical evidence and the injury which could have been there on the person of the deceased and we have come to a conclusion that infact a solitary incised wound which was piercing into the stomach of the deceased was caused due to which many internal organs like the large and small intestines besides cutting a rib and tears of the diaphragm was caused and the deceased who had recovered a bit after surgery, slumped and died. 25. In our view the medical evidence does not appear contradicting the oral evidence, as such, the finding which was recorded by the learned trial Judge, in our opinion, appears completely perverse as no reasonable man could take, a view in the light of the evidence of P.W's 1,2 and 3 doctors P.W's. 8,9 and 10 that there was any conflict between the evidence of the doctors and the witnesses. 25. The other finding which has been recorded by the learned trial Judge for acquitting the accused persons was that no blood was found on the place and the witnesses who had deposed on the place of occurrence were giving varying evidence and, as such, the place was not fixed. We may first point out that in no criminal case one could be very certain about anything. The proof of charges is through human process and allowance have to be given to the evidence of witness to judge the probability which could be arising from the witnesses so as to proving the charges. We may first point out that in no criminal case one could be very certain about anything. The proof of charges is through human process and allowance have to be given to the evidence of witness to judge the probability which could be arising from the witnesses so as to proving the charges. Proof to the hilt does not mean that evidence has to be foolproof and there should not be any difference between the evidence of two witnesses. When two persons are found deposing on a single fact very often one may find that there are some variance in some details in the evidence of witnesses and for that reason it could not be prudent for a court to reject the evidence of such witnesses on account of the minor contradictions which could not be material as regards the central theme of the case. After having gone through the evidence of the witnesses and contrasting the evidence with the site-plan, what we find is that the occurrence had taken place at point '?' as shown in the site plan, the learned trial Judge had made hair splitting of the evidence when he was noting that the temple which had been described by the witnesses as that of "Munga Ji Ka temple" was ten steps away from the place denoted by point '?' and 14 steps away from Kanahiya Lal Ji Temple and the witnesses who were deposing on the place of occurrence were pointing out that it was infact located in between 'Munga Ji Ka Temple' and Janta Clothe Stores. We may further point out that the human estimate of distance and time is always misleading and has near to be exact. One may find some one telling the distance which may be varying in quite some proportions from other's evidence. It is not the real approach to judge the evidence. We may further point out that the human estimate of distance and time is always misleading and has near to be exact. One may find some one telling the distance which may be varying in quite some proportions from other's evidence. It is not the real approach to judge the evidence. The evidence has to be judged by approximation as to whether the place could be approximately around the land marks which have been given by the witnesses and when we view the evidence to appreciate it we find that though the place which has been indicated in the site plan may be directly in front of Janta Clothe Stores, it was not far away from Munga Ji Ka Temple and, as such, if a witness was pointing out that it was in fact opposite the Munga Ji Ka Temple which may not be opposite Janta Clothe Store, we cannot simply reject his evidence. We have to apply the rule of approximation in human behaviour to assess such evidence and when we do it, we find that the witnesses may not be held to be telling lies before the Court. It was in the lane and it was in the opposite vicinity of Munga Ji Temple and Janta Clothe Stores and the place could not be said to be not established by the prosecution. 27. The other reason given by the learned trial Judge was that blood was not found at the place where the deceased was claimed having been assaulted by the accused. The evidence of witnesses shows that the lane through which the deceased persons were passing was laden by stone bricks and that was the reason that the Farsa which had been wielded by Nand Lal to hit the deceased Dau Dayal after having not hit the deceased fell on the ground and did not leave any mark. Normally the stones which are laid on pathways are darker in colour and when the blood dry up it may not be found identifiable. Moreover, the occurrence had taken place at 5 p.m. on 15.4.1980. The afternoon time of 5 P.M. in mid-April in Mathura one has always to accept, could be as hot as a just shut out blast furnace. As such, the dripping blood should have dried up in no time. Moreover, the occurrence had taken place at 5 p.m. on 15.4.1980. The afternoon time of 5 P.M. in mid-April in Mathura one has always to accept, could be as hot as a just shut out blast furnace. As such, the dripping blood should have dried up in no time. It is true that it was a Tuesday and the businesses were completely shut except a few eateries and panwalas, but inspite of that when the assault had been wielded and the deceased had been injured it could have created a commotion in the locality which could have caused convergence of a lot of persons at the place of occurrence and there was no wonder that whatever little blood could have oozed out on the surface of the pathway it could have been smothered or wiped out by the foot prints of the persons who could have passed by the lane with ignorance of existence of such an important evidence of a case of assault. The blood stained clothes were found by the doctor who had examined Dau Dayal and that appears seized by the police by preparing seizure memo Exhibit-Ka-9, when the same were returned to the police as may appear from the evidence of P.W.6 Head Constable Narendra Singh who also stated that he took the seized clothes and that fact is further corroborated by the evidence of P.W.7 constable Gaya Prasad who stated that he took the seized articles to chemical laboratory for analysis. Thus it was not that as was held by the learned trial Judge, that if a ballam was pierced into the stomach of the deceased, no bleeding had occurred. If the bleeding had not occurred the blood stained clothes should not have been seized as per the seizure memo (Exhibit-Ka-9) which is available at page 8 of the paper book. As such, one of the reasons which was assigned by the learned trial Judge regarding not finding the blood at the place of occurrence or no bleeding from the body of the deceased appears not acceptable to us. The learned trial judge was missing one of the most important evidence exhibit Ka-9 the seizure memo prepared by the police in respect of seizure after production of the blood stained clothes before it which were put on at the time of the occurrence by the deceased. 28. The learned trial judge was missing one of the most important evidence exhibit Ka-9 the seizure memo prepared by the police in respect of seizure after production of the blood stained clothes before it which were put on at the time of the occurrence by the deceased. 28. Thus, what we find is that the findings recorded by the learned trial judge at page 41 while summing up the findings in the light of the evidence to us does not appear borne out of the evidence produced by the witnesses and it appears that the learned trial Judge had misappreciated the evidence and had not marshalled the facts correctly and, as such, had fallen in error in raising wrong inferences, as a result of which the reasons for recording that the charges were not proved appear to us perverse. 29. However, we have one more aspect of the case to be considered as to who could be held to be guilty of committing the offence and what offences could be said to be committed. After appreciating the evidence as we have just done, what we find undeniably appearing from the evidence of the prosecution was that the Farsa blow which was attempted by Nand Lal alias Nando was not hitting the deceased and he was not attempting any further blow. Likewise, Dhanpal alias Sidhnath was also alleged to have given a lathi blow but that did not hit the deceased. The Farsa blow was wielded as the first blow on the deceased and Nand Lal was not repeating it. The only Ballam blow which was given by respondent Kunj Lal appears the reason of causing the death of Dau Dayal. We have some doubt that Nand Lal or Dhan Pal alias Sidh Nath could be said sharing the intention as was entertained by the respondent Kunj Lal alias Goli who also appears not repeating the blow despite the fact that witnesses stated that after receiving the blow deceased Dau Dayal had crouched and had held the wound with his left hand. Inspite of the deceased being in that position, no blow either with Farsa or Ballam was given either by Kunj Lal or Nand Lal. Inspite of the deceased being in that position, no blow either with Farsa or Ballam was given either by Kunj Lal or Nand Lal. While we have some doubt regarding the intention of Nand Lal in giving the blow as may be the case with Dhanpal, we are definite that the very blow given by Kunj Lal could have been given with a knowledge that the act which Kunj Lal was committing could be so eminently dangerous as was likely to result in the death of Dau Dayal. On account of the nature of evidence which is available to us, we have doubt in the very intent of Nand Lal and Dhanpal and, as such, we uphold the acquittal of respondents Nand Lal alias Nando and Dhanpal as regards the charge under Section 302/34 IPC framed against them. So far as the act which was committed by Kunj Lal alias Goli we are definite in our view that the act may not be constituting an offence under Section 302 IPC. The blow was given on 15.4.1980 and the deceased died on 9.5.1980 i.e. after almost three weeks of the incident. The evidence of the treating surgeon, Dr. Chandra Bhushan P.W. 10 does indicate that it was a very serious blow which had caused many cuts both in the large and small intestines besides having cut one of the ribs and torn the diaphragm but after surgery the deceased had recovered and was also taking some liquid diet orally. We do not exactly know as to what was the reason that his condition deteriorated all on a sudden which could not be retrieved in spite of the effort made by the doctors. As such, we are of the opinion that it could be a case under Section 304 Part II IPC as the respondent Kunj Lal must be knowing the consequences of his act as serious as to entail death upon deceased Dau Dayal. 30. We, accordingly, hold respondent Kunj Lal alias Goli guilty of committing the offence under Section 304 part II IPC. 31. The question then is as to which punishment should be inflicted upon respondent, Kunj Lal alias Goli. Sri P.N. Mishra, learned senior counsel appearing on behalf of the respondent, Kunj Lal alias Goli, as we have already noted, has placed before us Bira Singh's case. 31. The question then is as to which punishment should be inflicted upon respondent, Kunj Lal alias Goli. Sri P.N. Mishra, learned senior counsel appearing on behalf of the respondent, Kunj Lal alias Goli, as we have already noted, has placed before us Bira Singh's case. In that case Bira Singh had also given a single blow on the left flank of the deceased with a sella which had caused an injury measuring 2 cm x 1-1/2 cm. Undisputedly, Bira Singh had not repeated the blow after having caused the injury as appears in the present case that respondent Kunj Lal also did not do so which, as per the Supreme Court, raised an inference as if Bira Singh did not have intention of causing murder of the deceased. Considering the above circumstances and applying them to the facts of the present case which appears almost akin to the facts of the present case, we do not have any hesitation that it will be a case, as we have already held, under Section 304 Part 2 IPC and as regards the sentence, we may note that the trial was concluded on 18.2.1981 and it is after 29 years that we are upsetting the judgment of acquittal. In that view as in the case of Bira Singh (supra) we propose to direct respondent Kunj Lal alias Goli to pay a fine of Rs. 50,000/- as sentence and in default of payment of fine by him to undergo rigorous imprisonment for five years. In case the fine is paid, the whole amount shall be paid, as compensation under Section 357 Cr.P.C., to the next of kin or kins of the deceased Dau Dayal. The appeal is partly allowed in the above terms. _______________