JUDGMENT Kalimullah Khan, J.: - This Government Appeal has been filed under section 378 Cr.P.C. by State of Uttar Pradesh against accused Babu Ram and nine others challenging the impugned judgment and order dated 31.5.1983 whereby learned Trial Court has recorded a finding of acquittal of accused-respondents Babu Ram, Pooran sons of Shekhar, Lakhmi Chand son of Ram Niwas, Bangali, Rameshwar sons of Loti, Loti son of Harphool, Som Pal, Sukkhar sons of Chatru, Shekhar, Chatru sons of Fakira out of whom during the pendency of this criminal appeal accused-respondents Babu Ram, Pooran, Loti, Shekhar and Chatru have expired, therefore, vide order dated 13.2.2014 appeal against them has been abated. Now this judgment pertains only in respect of accused Lakhmi Chand son of Ram Niwas, Bangali, Rameshwar sons of Loti, Som Pal, Sukkhar sons of Chatru alone. 2. Accused Bangali was charged for the offence punishable under sections 147, 323/149,452 and 302/149 I.P.C. whereas rest of the aforesaid accused were charged under sections 148, 323/149, 452 and 302/149 I.P.C. They had denied the charge and claimed their trial. 3. The incident is dated 27.12.1980 at about 9: 00 a.m. As per the prosecution case 9 or 10 days ago from the date of incident accused Babu Ram had lodged a false report of theft against Katara and Jaswant, who are brothers of the first informant, Fatta son of Ghasi, R/o Mohabalipur, P.S. Charthawal, District Muzaffar Nagar. In that F.I.R. Both the accused Katara and Jaswant were bailed out by the Court. On the aforesaid date .and time of incident, Katara was going to Charthawal. In the way near the house of Niranjan, accused Babu Ram armed with Ballam met him and extended threat that he would teach him a lesson for getting bail in the aforesaid theft case which resulted into some altercation in between the two. Katara went to his house. Soon after, accused Pooran, Loti armed with spear (Bhala), Chatru armed with Garasa, Som Pal armed with axe, Rameshwar armed with gun and Bangali armed with lathi attacked Katara in his house and started beating him. Accused Babu Ram inflicted Ballam injuries in the neck of Katara, all the remaining accused used their respective weapons. Accused Lakhmi armed with gun was instigating the remaining accused to commit the murder of Katara. Witnesses Niranja and Mahakar Singh went to rescue. Accused Babu Ram inflicted Ballam injuries in the neck of Katara, all the remaining accused used their respective weapons. Accused Lakhmi armed with gun was instigating the remaining accused to commit the murder of Katara. Witnesses Niranja and Mahakar Singh went to rescue. Katara fell down unconscious after sustaining injuries All the accused managed to their escape good. Mahakar Singh escorted Katara in a Bogi to hospital. 4. Fatta, real brother of Katara, hereinafter called the 'deceased' lodged (a written report at P.S. Charthawal. On its basis case was registered as crime No. 170 of 1980 under sections 147, 148, 149, 452, 323 and 308 I.P.C. on 27.12.1980 at 10: 15 a.m. in the G.D. vide rapat No. 15. Chik report was drawn accordingly. The injuries of Fatta, informant are noted in the G .D. Investigation was started. During the course of investigation, I.O. was informed vide G.D. rapat No. 17 at 11: 35 a.m. the same day that Katara expired at P.H.C., Charthawal. The case was, therefore, converted through the aforesaid G.D. rapat No. 17 under section 304 I.P.C. I.O. sent the informant Fatta alongwith Chitthi Mahrubi for his medical examination. I.O. prepared the site plan; recovered blood stained earth from the place of incident; interrogated witnesses Mahakar Singh, Niranjan Singh and others under section 161 Cr.P.C.; prepared panchayatnama and other necessary papers and thereafter sealed dead body and sent to mortuary for post-mortem examination. Autopsy was drawn on 28.12.1980 at 1: 30 p.m. Five incised wounds, two multiple abrasions, two contusions, one lacerated wound and one abrasion were found on the body of deceased. After completing the investigation, charge-sheet was submitted against all the ten accused persons under sections 147, 148, 149; 452, 323 and 302 I.P.C The case was committed to the Court of Sessions vide order dated 7.8.1981 passed by learned C.J.M., Muzaffar Nagar. After framing the charge, prosecution examined nine witnesses in all. Accused were examined under section 313 Cr.P.C. They denied the allegations and evidence adduced against them. Accused Lakhmi Chand pleaded his alibi and stated that at the time of occurrence, he was in the school and was not present at the spot. Rest accused Pooran, Bangali, Rameshwar, Loti, Som Pal, Shekhar stated that on the day of incident at 9: 00 a.m. Katara (deceased), Fatta, Niranjan, Mahakar Singh etc. Accused Lakhmi Chand pleaded his alibi and stated that at the time of occurrence, he was in the school and was not present at the spot. Rest accused Pooran, Bangali, Rameshwar, Loti, Som Pal, Shekhar stated that on the day of incident at 9: 00 a.m. Katara (deceased), Fatta, Niranjan, Mahakar Singh etc. 22 persons had caused injuries to them, therefore, they wielded lathis in their self defence. 5. It appears that a number of persons from the accused side including some of the accused received injuries in the same incident regarding which a cross case was registered in which charge-sheet was submitted and trial proceeded. Accused were called upon to enter into their defence. Accused examined in their defence Subhash Chandra Tyagi, D.W.1 and Jai Prakash, Head Clerk, D.W.2. 6. Fatta, P.W.1, Mahakar Singh, P.W.2 and Niranjan, P.W.3 have supported the prosecution story on each and every material point. Dr. G.C Chaturvedi, has medically examined injured Fatta as well as accused Chatru, Shekhar and Babu Ram on the same day. Dr. Suresh Chand, P.W. 5 conducted the autopsy on the dead body of deceased Katara. Constable Padam Singh, P.W. 6 accompanied the dead body from P.H.C. to mortuary. Constable Satya Pal Singh, P.W. 7 prepared the chik F.I.R. G.D. entry. He has further proved the chik FLR. and copy of the G.D. of cross case as well. Vishwanath Singh Chauhan, P.W. 9 is the I.O. of the case and he has proved the investigation. Subhash Chandra Tyagi, D.W. 1, the Head Clerk of Jai Hind Inter College, Charthawal has proved the attendance of accused Lakhmi Chand in the college on 27.12.1980 at the time of incident. He has proved the alibi taken by accused Lakhmi Chand. Jai Prakash, D. W. 2 supported the defence version and he has also been examined as P.W. 3 in the cross case. 7. Having heard learned Counsel for the parties, learned Trial Court held vide impugned judgment and order dated 31.5.1983 that charges framed against accused are not proved, hence, they are not found guilty. 8. Jai Prakash, D. W. 2 supported the defence version and he has also been examined as P.W. 3 in the cross case. 7. Having heard learned Counsel for the parties, learned Trial Court held vide impugned judgment and order dated 31.5.1983 that charges framed against accused are not proved, hence, they are not found guilty. 8. Learned Trial Court has recorded a finding of acquittal of all the accused on following grounds: (i) That there is no immediate motive for this mar-peet (ii) That blood stained earth had not been sent to chemical examiner to prove that it was human blood (iii) That it is improbable that none of the persons of the locality came out of their houses when the accused were shouting slogans (iv) That there were number of persons of the locality as witness of the incident but Fatta, P.W. 1 has not cited them as a witness in the FLR. (v) That Fatta did not claim in the F.I.R. that he too had sustained injuries in the incident (vi) That his injuries is concocted and, therefore, his testimony is not worthy of credence and lastly, (vii) That prosecution has totally failed to explain the injuries of the accused persons and the explanation given by prosecution at subsequent stage during trial is an outcome of a development, improvement and afterthought. 9. Feeling aggrieved, State of U.P. has preferred this criminal appeal. 10. Learned A.G.A. has argued that learned Trial Court has erred in not relying the testimony of Fatta and two other witnesses of prosecution examined as P.Ws. 1, 2 & 3; the injuries sustained by the accused persons are of superficial in nature and they are concocted; motive is fully proved and plea of alibi set up by accused Lakhmi Chand has not been proved by reliable evidence. 11. Per contra, Sri Sushil Kumar Pandey, learned counsel for the respondents has submitted that the medical evidence is inconsistent with the prosecution story; that injuries sustained by accused persons are not of superficial in nature; that they have been medically examined by doctor who had examined Fatta; that there is a cross case registered against P.Ws. 2 & 3 on the same date and time when the F.I.R. of the present case was registered; that after investigation of the cross case, I.O. has ,submitted the charge sheet against a number of accused persons including the P.Ws. 2 & 3 on the same date and time when the F.I.R. of the present case was registered; that after investigation of the cross case, I.O. has ,submitted the charge sheet against a number of accused persons including the P.Ws. 2 & 3; that non-explanation of the injuries of accused is fatal to the prosecution; that the witnesses examined on facts are wholly unreliable; that prosecution has suppressing the material facts and has not come with clean hands and that even if the plea of alibi has not been proved firmly, no benefit shall accrue to prosecution in view of the fact that prosecution has miserably failed to prove its case beyond reasonable doubt and lastly, he submitted that view taken by learned Trial Court acquitting all the accused respondents is a possible view which is neither perverse nor against the weight of evidence on record. Therefore, this Appellate Court need not reverse the finding of acquittal recorded vide impugned judgment and order dated 31.5.1983. 12. We have heard learned A.G.A. and learned Counsel for the respondents. Perused the record. 13. In this case prosecution has alleged that Ballam, Bhala, Garasa, Axe, Tabal, Knife, Gun and Lathi have been used but the autopsy shows that deceased had sustained following injuries: 1. Incised wound 2 cm. x cm. x bone deep oblique on right of head 4 cm. above ear. 2. Incised wound 1 cm. x ½ cm x bone deep on the mid line of head 4 cm. above bone. 3. Incised wound 1½ cm. x ¼ x bone deep on left side of head, 2 cm. above left ear. 4. Incised wound 2 cm. x ¼ cm. x bone cut on left side of head, 1½ cm. above and behind left ear. 5. Lacerated wound ½ cm. x ½ cm. x bone deep 1 cm. above left ear on left side of head. 6. Abraded contusion 2 ½ cm. x 1 cm. on left ear and left side of face. 7. Incised wound 2 cm. x ½ cm. x bone deep (bone cut) on the back of left shoulder. 8. Multiple contusions on right side of back size varying from ½ cm. x ¼ cm. to 6 cm. x 1 cm. 9. Multiple contusions on left side of back side from 1 cm. x ½ cm. to 7 cm. x 2 cm. 10. Contusion 5 cm. x ¼ cm. 8. Multiple contusions on right side of back size varying from ½ cm. x ¼ cm. to 6 cm. x 1 cm. 9. Multiple contusions on left side of back side from 1 cm. x ½ cm. to 7 cm. x 2 cm. 10. Contusion 5 cm. x ¼ cm. on left side of chest lower part oblique. 11. Contusion ½ cm. x ¼ cm. on the back of left upper arm lower part. 14. The aforesaid injuries may be caused by lathi and some sharp edged weapon. Although, the lacerated wounds on the bony parts, sometimes, resemble as incised wounds but even if we take these incised wounds to have been caused by some sharp cutting weapon even then there is no spear injury at all whereas three persons have been assigned the role of using spear to cause the injuries at the person of deceased. In sharp cutting weapons there were Garasa, Axe, Tabal and Knife but the incised wounds are only in three in numbers, therefore, certainly one of such sharp cutting weapon has not been used and it is not known as to who was that accused who did not use his weapon. Likewise, there is no fire arm injury at the person of deceased. Therefore, we find substance in the contention of learned Counsel for the accused respondents that medical evidence is inconsistent with the ocular testimony. Therefore, the finding of acquittal recorded by learned Trial Court appears to be a possible view. 15. Three accused persons Chatru, Shekhar and Babu Ram have sustained injuries at their person as per the medical examination reports examined and prepared by Dr. G.C. Chaturvedi, P.W4. Chatru accused had sustained following injuries: - 1. Lacerated wound 2.25 cm. x 2.5 cm. on the nail bed of left thumb. Nail detached from its base, margins irregular, bleeding present, bone deep. Nail attached at the tip with swelling 2 cm x 1.5 cm. just above the injury. Advised x-ray. 2 Abrasion size 1.5 cm. x 2 cm. on the back of left fore-arm, 3.5 cm above the wrist joint. No scabbing. 3. Abrasion size 1 cm. x 1 cm. on the outer aspect of left elbow, No scabbing. 4. Abrasion 4.5 cm. x 0.25 cm. on the left side back, obliquely place 15 cm below the inferior angle of left scapula. No scabbing, complaint of pain. 5. Abrasion 1 cm. No scabbing. 3. Abrasion size 1 cm. x 1 cm. on the outer aspect of left elbow, No scabbing. 4. Abrasion 4.5 cm. x 0.25 cm. on the left side back, obliquely place 15 cm below the inferior angle of left scapula. No scabbing, complaint of pain. 5. Abrasion 1 cm. x 1 cm. on the outer aspect of right wrist. No scabbing. 6. Abrasion 0.25 cm. x 0.25 cm. on the back of base of right thumb. No scabbing. 7. Traumatic swelling size 3.5 cm. x 2.5 cm. on the dorsum of right index finger base. Complaint of pain. Advised x-ray. 8. Complaint of pain on right side chest lower part. No external visible injury 9. Abrasion size 0.5 cm. x 0.25 cm. on the outer aspect of left index finger base. No scabbing. 10. Contused area 11 cm. x 7 cm. on the right hip (buttock) round, red coloured complaint of pain. 11. Contusion 4.5 cm. x 3 cm. on the right thigh back 7 cm below injury No. 10. No scabbing. 12. Contusion 10 cm. x 2 cm. on the outer aspect of right thigh upper part. Red colour. 13. Contused area 7 cm. x 5.5 cm. on the left buttock, round red coloured, complaint of pain. 14. Contused area 15 cm. x 13 cm. back and outer aspect of left thigh, 2 cm. below injury No. 13. Red colour, complaint of pain. 15. Contused area 5 cm. x 3.5 cm. on the outer aspect of back of left thigh. 6 cm below injury No. 14 Colour red, complaint of pain. 16. Abrasion 1.5 cm. x 0.25 cm. on the front of left leg middle part 18 cm. below the knee. 16. The doctor found all the injuries fresh. Injury Nos. 1 & 7 were kept under observation and x-ray was advised. Remaining injuries were simple. Injuries No. 1, 7, 10, 12, 13, 14 & 15 were due to some blunt object. Injuries No. 2, 3, 4, 6, 9, 11 & 16 were due to friction against some blunt object. The doctor proved the injury report Exhibit Ka-1. Shekhar accused had sustained following injuries 1. Incised wound 5 cm x 1.5 cm. x 1.5 cm. deep on the front & medial side of right leg middle part 13.5 cm. above the medial malleolus margins are clean cut. The doctor proved the injury report Exhibit Ka-1. Shekhar accused had sustained following injuries 1. Incised wound 5 cm x 1.5 cm. x 1.5 cm. deep on the front & medial side of right leg middle part 13.5 cm. above the medial malleolus margins are clean cut. Bleeding present, running from upwards to downwards, swelling 12 cm all around the injury. 2. Contusion red 5 cm. x 1.5 cm. on the right leg, middle part inner aspect ½ cm. medial to injury No. 1. 3. Contusion 9 cm. x 2 cm. on the outer aspect of left leg 9.5 cm. below the knee. Red coloured. Complaint of pain, with a swelling traumatic size 10 cm. x 9 cm. Size around. 4. Abrasion 0.5 cm. x 0.5 cm. on the outer aspect left leg lower part 5 cm. above the outer malleolus. No scabbing. 5. Abrasion 1.5 cm. x 1 cm. 1 cm. below injury No. 4. No scabbing. The injuries were fresh. Injury No. 1 was kept under observation and advised x-ray of right leg Injury No. 1 was caused by a sharp cutting object while injuries No. 2 & 3 due to some blunt object and injuries No. 4 & 5 due to friction. Injuries No. 2 to 5 were simple. The doctor proved the injury report Exhibit Ka-2. Babu Ram accused had sustained following injuries: - 1. Abrasions two in number in an area of 2.5 cm. x 1.5 cm. on the inner side of right knee 1 cm. below the patella. No scabbing, Abrasions are curved in shape. 2. Abrasion 0.5 cm. x 0.5 cm. on the dorsum of right 2nd toe, 2.5 cm. above the tip. No scabbing. 3. Complaint of pain right zygoma, cheek and lower part of left leg. No external visible injury. The doctor found the injuries fresh. All the injuries were caused by friction against some blunt object. The doctor proved the injury report Exhibit Ka-3. 17. The perusal of the aforesaid injuries do not suggest that their injuries were superficial in nature or self inflicted but there is no whisper in the F.I.R. lodged by Fatta that either of the accused had sustained any injury in the incident. The non-explanation of those injuries of accused is fatal to the prosecution and this ground alone is sufficient to record a finding of acquittal. The non-explanation of those injuries of accused is fatal to the prosecution and this ground alone is sufficient to record a finding of acquittal. Therefore, learned Trial Court appears to have rightly recorded the finding of acquittal. 18. Fatta, P.W. 1, first informant of the case did not claim in the F.I.R. that he too has sustained any injuries in the incident but still he was medically examined on 27.12.1980 at 12.30 p.m. Following injuries at his person is said to have been found: 19. Abrasion 1.5 cm. x 1 cm. on the left anterolateral aspect of shoulder. No scabbing. Injury is surrounded by contusion size 5 cm. x 3.5 cm. around red in colour. Complaint of painful movements at shoulder joint, Advised x-ray. 20. The injury was fresh. This injury was due to some blunt object. The injury was kept under observation. P.W. 4 Dr. G.C. Chaturvedi proved the injury report Exhibit Ka-2. 21. The aforesaid injuries appears to be superficial in nature and, therefore, there is substance in the contention of learned Counsel for the respondents that the aforesaid injury was procured by Fatta only to establish his presence at the spot and the learned Trial Court has rightly doubted the presence of injuries at his person and disbelieved this witness particular for the reason that he was an interested witness being the brother of deceased. Rest two P.Ws. 2 & 3 are the accused in the cross case and, therefore, they were bound to depose against the accused persons in this case. Since, medical evidence is inconsistent to their testimony, therefore, they have rightly been disbelieved by the prosecution. 22. I.O. who has prepared the inquest has deposed that till the preparation of the panchayatnama, he was not given the chik report or the G.D. entry regarding registration of the case. The inquest officer, S.I., C.S. Pathak, P.W. 8 has stated that till the completion of inquest he did not know as to whether or not F.I.R. had been lodged. Likewise, he did not know as to whether either of the witnesses of the inquest was a witness of fact. The inquest officer, S.I., C.S. Pathak, P.W. 8 has stated that till the completion of inquest he did not know as to whether or not F.I.R. had been lodged. Likewise, he did not know as to whether either of the witnesses of the inquest was a witness of fact. Therefore, the learned Trial Court appears to have rightly observed that although there is no clear cut evidence to hold that report is ante-time yet the aforesaid evidence of P. W. 8 is sufficient to create doubt on the point that probably the F.I R. had not been lodged on the date and time alleged by the prosecution. 23. The finding of learned Trial Court appears to be correct that when the target was Katara and he had already been intercepted by accused Babu Ram in the way to his house when Katara was empty handed and Babu Ram was armed with ballam and he had extended threat to Katara to teach him a lesson then why after all he was not assaulted there by Babu Ram accused and what was the need to allow him to go to his house and then to attack him with a mob in his house with a particular weapons. Although they did not appear to have been used in the manner as alleged by the prosecution. The finding of learned Trial Court does not suffer from any infirmity. 24. So far as motive aspect is concerned Babu Ram has already lodged F.I.R. of theft against deceased and his brother Jaswant in which they were bailed out. Therefore, the motive of assaulting Babu Ram might have been there with Katara and Jaswant but Babu Ram does not appear to have nursing grudge to commit the murder of Katara and the assessment of the evidence on the point of motive made by learned Trial Court does not appear to call for any interference by this Appellate Court and he has rightly held that the motive alleged by prosecution was not sufficient for committing murder of Katara. 25. It appears to be a case of free fighting in between the parties and the prosecution did not put forth genesis and manner of the occurrence fully which creates doubt as to the origin of the fight and the benefit thereof is bound to go to the accused. 26. 25. It appears to be a case of free fighting in between the parties and the prosecution did not put forth genesis and manner of the occurrence fully which creates doubt as to the origin of the fight and the benefit thereof is bound to go to the accused. 26. Likewise, non-explanation of the injuries sustained by the accused points out a natural inference to be drawn by the Court that the prosecution has suppressed the genesis and the origin of the occurrence and thus not presented the true versions which follows that prosecution witnesses who has denied the presence of injuries on the person of accused are telling a lie on a most material point which creates doubts in their depositions and such depositions cannot be made the basis of conviction of accused. 27. Both the parties have told different mode and manner of the incident and different place of incident. In such cases recovery of blood from a particular place alone is not sufficient to fix up the place of occurrence rather to establish firmly the actual place of incident the I.O. should get the chemical examiner's report on the point as to whether or not recovered blood from a particular place was human blood. In view of the aforesaid facts and circumstances where prosecution has failed to prove its case beyond all reasonable doubt, plea of alibi is insignificant and even if the defence version is found false the onus does not shift to accused. Therefore, the learned Trial Court has rightly held that although the plea of alibi of accused Lakhmi Chand is false, he cannot be convicted on this score. 28. Since, the view taken by learned Trial Court acquitting all the accused vide well discussed and well reasoned impugned judgment and order dated 31.5.1983 is a possible view which is based on evidence on record we are not inclined to reverse the finding of acquittal. Government Appeal lacks merit and is hereby dismissed. Appeal Dismissed.