Rakesh Tiwari & Kalimullah Khan,J. This Government Appeal No. 745 of 1981 under Section 378 Cr.P.C. has been preferred by State of U.P. against Khacheru son of Kewal, Zilley son of Kewal, Bhulley son of Khacheru and Satish son of Khacheru, all resident of village Amipur Baleni, Police Station- Pilana, District- Meerut against the impugned judgment and order dated 23.12.1980 passed by Vth Additional Sessions Judge Meerut in Sessions Trial No. 483 of 1979 whereby he has recorded a finding of acquittal against all the four respondents in Case Crime No. 103 of 1979 under Sections 302/34 and 323/34 I.P.C. 2. The impugned judgment and order has been challenged on the ground that it is against law and facts of the case. It is perverse because it is against the weight of evidence on record. 3. During the pendency of this Government Appeal, accused respondents Khacheru, Zilley and Bhulley have died, therefore, the appeal filed against them stood abated vide order dated 8.11.2005. 4. All the four accused Khacheru, Zilley, Bhulley and Satish were charged by learned trial court on 9.6.1979 that they had about 6:30 A.M. in the jungle of village Amirpur Baleni, P.S.- Pilana, District- Meerut in furtherance of the common intention of them all did commit murder of Ram Kumar by intentionally causing his death and thereby they had committed an offence punishable under Section 302 read with Section 34 I.P.C. and within cognizance of court of Sessions. They were further charged that on the aforesaid date, time and place in furtherance of common intention of them all accused voluntarily caused hurt to Rohtash son of deceased and thereby they committed an offence punishable under Section 323 read with Section 34 I.P.C. and within the cognizance of court of Sessions. They denied the charge and claimed their trial. 5. In order to prove its case, prosecution examined as much as seven witnesses viz. Rohtash (P.W.-1) who proved his written report and deposed that accused persons were forcibly opening door in their boundary walls towards his Chak. On being protested by him and his father, Khacheru and Bhulley armed with Phawara, Zilley armed with Lathi and Satish armed with Burri assaulted his father Ram Kumar (hereinafter called deceased) with their respective weapons who sustained injuries and fell down on the ground. He intervened to rescue his father, therefore, he was also assaulted with Phawara. On being protested by him and his father, Khacheru and Bhulley armed with Phawara, Zilley armed with Lathi and Satish armed with Burri assaulted his father Ram Kumar (hereinafter called deceased) with their respective weapons who sustained injuries and fell down on the ground. He intervened to rescue his father, therefore, he was also assaulted with Phawara. With the assistance of the villagers, he was taking his father to hospital but in the way he succumbed due to his injuries. After leaving the dead body near the shop of Dr. Shambhu, he went to police station and lodged the F.I.R. at about 7:15 A.M. on 9.6.1979 regarding the aforesaid incident which had occurred on 9.6.1979 at about 6:30 A.M. after covering a distance of one kilometer from the scene of the incident to police Station- Pilana, District- Meerut. 6. On the basis of his written report, Chek F.I.R. was drawn and case was registered on the General Diary. The investigation followed. The I.O. recovered blood stained and plain earth from the spot and made recovery of two Phawaras and Burri from the house of accused persons on their pointing out. The wooden belt of one of the Phawara was also recovered. 7. First informant Rohtash aged about 17 years was medically examined on 9.6.1979 at 8:30 A.M. in District hospital Meerut. Following injuries were found at his person:- 1- Lacerated wound 1/2" X 1/10" X scalp deep on the right side posterior part of head 4" above the right ear. 2- Complaint of pain left side back lower part. No injuries seen. 8. The aforesaid injuries were found simple in nature and fresh in duration. They were caused by blunt object. During the course of investigation, I.O. prepared the inquest and sealed the dead body and sent it to mortuary along with necessary papers for postmortem examination. After concluding the investigation, I.O. submitted charge sheet against the four accused. 9. Kishan Lal (P.W.-2) deposed that all the four accused were beating deceased (Ram Kumar) with their Phawara, Burri and Lathi and when Rohtash went to save his father, he was also beaten by them. 10. Chhitra (P.W.-3) has deposed that he had seen Khacheru, Bhulley and Satish accused beating Ram Kumar with their Phawara and Burri. He had not seen anybody other than the aforesaid three accused beating the deceased. 10. Chhitra (P.W.-3) has deposed that he had seen Khacheru, Bhulley and Satish accused beating Ram Kumar with their Phawara and Burri. He had not seen anybody other than the aforesaid three accused beating the deceased. In this way, he has given clean chit to co-accused Zilley. 11. Dr. V.K. Bhargava (P.W.-4) has proved the injury report of Rohtash Exhibit Ka-8. 12. Ram Tek (P.W.-5) is a witness of inquest and recovery of blood stained and plain earth as well as a witness the recovery of Phawara and Burri. He has proved the same. 13. Dr. G.C. Agarwal (P.W.-6) is a witness who has conducted the postmortem and had prepared the report Exhibit Ka-15. He proved the same. According to him following antemortem injuries were found on the body of the deceased:- 1- Lacerated wound 5cm X 1cm X bone deep on top of head 12 cm above right ear. 2- Incised wound 3cm X 1cm X bone underneath cut on right side head 4 cm above right ear. 3- Incised wound 1cm X 1/2cm X muscle deep on back of right ear lower part. 4- Abrasion 5cm X 2cm on right side back of neck. 5- Incised would 4cm X 1cm X muscle deep upper part scapula. 6- Abrasion 2cm X 1cm on top of right shoulder. 7- Lacerated wound 2cm X 1/2cm X skin deep front of right of Index finger middle part. 14. Sri Bhanu Pratap Singh, S.O. (P.W.-7) is the Investigating Officer and he has proved the investigation. 15. No other prosecution witness appears to have been examined. Accused persons were examined under Section 313 Cr.P.C. They denied the prosecution evidence and attributed their false implication in this case due to enmity. However, they have not adduced any evidence in their defence. 16. Having heard the learned counsel for the parties and the impugned judgment and order dated 23.12.1980, learned trial court has held that prosecution has failed to bring guilt home to the accused persons beyond reasonable doubt and the accused persons deserves acquittal. Accordingly, he acquit all the four respondents in the charges framed against them. 17. Feeling aggrieved, this Government Appeal has been preferred as stated above. 18. After the perusal of the record, we are of the opinion that injuries sustained by the deceased Ram Kumar do not tally with the postmortem report even Dr. Accordingly, he acquit all the four respondents in the charges framed against them. 17. Feeling aggrieved, this Government Appeal has been preferred as stated above. 18. After the perusal of the record, we are of the opinion that injuries sustained by the deceased Ram Kumar do not tally with the postmortem report even Dr. G.C. Agarwal has categorically stated that injury no. 2, 3 and 5 are incised wounds and the injury no.2 cannot be inflicted by Burri rather it could be caused by a heavy sharp edged weapon. In the same manner, injury No. 2, 3 and 5 were not caused by Phawara and Burri which are said to have been used in the offence. 19. The first informant-injured, who is witness, in his written statement has stated that he had received injury by Phawara is also not corroborated by the medical evidence as injury sustained by him was contusion which cannot be caused by Phawara. 20. We are also of the view that the recovery of Phawara made by the police from the house of accused is not admissible under Section 27 Evidence Act, for want of disclosure statement. View taken by learned trial court is possible. In the result, Government Appeal is dismissed. _______________