Ramesh Sinha, J. Heard Sri Pankaj Bharti, learned Amicus-Curiae for the appellant, Sri R.K. Singh, learned AGA for the State and perused the record. 2. This appeal has been filed against the judgment and order dated 13.1.1983 in S.T. No.180/1980 convicting and sentencing the appellant under Section 302/34 IPC for life imprisonment. 3. The prosecution story as has been set-out is that accused Salim and Ilyas are the sons of accused Sharif Ahmad. On 17.5.1980, at about 11 A.M., a marpeet had taken place as between the deceased Shafiq and his brother Rafik Ahmad on the one hand and accused Sharif Ahmad and his brother Akil Ahmad on the other. In respect to the said marpeet, first information reports were lodged the same day by Rafiq Ahmad, the brother of deceased Shafiq Ahmad on the one hand and Jamil Ahmad, brother of accused Sharif Ahmad on the other. 4. The same day at about 12.30 p.m., the complainant Rais Ahmad was making some purchases from the shop of M/s Tara Chand Mool Chand in mohalla Sarrafa Bazar, Police Station Kotwali, Muzaffarnagar. At about the same time, the present three accused persons, namely Sharif Ahmad, Salim and Ilyas, were seen coming from the side of Sabzi Mandi. Accused Sharif was then armed with a Tabal, Salim with a knife and Ilyas with a kirpan. The aforesaid three accused persons then reached the mosque situate in the Sarrafa Bazar. Complainant Rais Ahmad had followed the said accused to a particular mosque. Shafiq was then standing near the said mosque and the hair of his head were stained with blood. The said three accused persons had surrounded Shafiq and said that in the morning he had escaped after giving them a beating and that he shall not be permitted now to escape from there, on saying so, the said three accused persons started assaulting Shafiq. He on receiving the injuries had then escaped into the nearby fruit godown of Nafis. The said three accused persons followed Shafiq into the said godown and wielded their respective weapons on him. The incident was witnessed by witnesses Zarif, complainant Rais Ahmad, Vinod and Yasin. After assaulting the Shafiq, the accused persons had escaped from the scene of the incident. Since the condition of Shafiq was then precarious, the complainant had put him in a rickshaw and proceeded to the Sadar hospital, Muzaffarnagar. The incident was witnessed by witnesses Zarif, complainant Rais Ahmad, Vinod and Yasin. After assaulting the Shafiq, the accused persons had escaped from the scene of the incident. Since the condition of Shafiq was then precarious, the complainant had put him in a rickshaw and proceeded to the Sadar hospital, Muzaffarnagar. While on the way to the said hospital, injured Shafiq had breathed his last. Complainant Rais Ahmad had handed over the written report (Ex.Ka.1) relating to the incident to constable clerk Rajendra Singh at Police Station Kotwali the same day at 1.30 p.m. The kurta (Ex.1) which the complainant was then wearing had also got stained with blood. At the time of the occurrence deceased Shafiq was wearing shirt (Ex.2), banyan (Ex.3) and pyjama (Ex.4). The said clothes got blood stained at the time of the marpeet. Constable clerk Rajendra Singh had prepared the Chik report (Ex.Ka.3) on the basis of the written report (Ex.Ka.1) and a reference thereof was made by him in the general diary, (Copy Ex.Ka.4). 5. Sub-Inspector Hari Raj Singh Tyagi had reached the District Hospital, Muzaffarnagar on 17.5.1980 and prepared the inquest report (Ex.Ka.11), photo nash (Ex.Ka.12), challan nash (Ex.Ka.13) and letters (Exs.Ka.14 and Ka.15) in respect to the post-mortem examination of deceased Shafiq. After sealing the dead body, it was handed over to the constable Raj Kumar for being taken to the mortuary at Muzaffarnagar for post-mortem examination. Sub-inspector Hari Raj Singh had also accompanied Inspector V.P.Singh, the investigating officer of the case to the scene of the incident on that very day. Blood stained and plain earth (Ex.5 and 6) and blood stained and plain cement pieces (Ex.7 and 8) were taken in his possession by Sub-Inspector Hari Raj Singh (P.W.5) at that time. The recovery memos of the items were prepared and made as (Ex.Ka.16 and ka.17) and the recovered earth and cement pieces were sealed separately. The godown referred to above was locked and sealed by the said Sub-Inspector and the key (Ex.9) of the lock was taken in possession by the Investigating Officer and the same was marked by a memo (Ex.Ka.18). The blood stain Kurta (Ex.1) belonging to the complainant was taken in his possession by the Investigating Officer and duly sealed there and the same was marked by a memo (Ex.Ka.9). 6. Dr. The blood stain Kurta (Ex.1) belonging to the complainant was taken in his possession by the Investigating Officer and duly sealed there and the same was marked by a memo (Ex.Ka.9). 6. Dr. R.K. Sharma (P.W.8) had conducted the autopsy on the dead body of Shafiq on 18.5.1980 at about 8 a.m. At the time of the post-mortem examination, the said doctor had found the following ante-mortem injuries on the body of deceased Shafiq Ahmad:- 1. Lacerated wound 2" x 1/2" x scalp deep on the middle of head, vertically placed. Hair blubs were crushed and clotted blood was present in the wound. 2. Incised wound 3/4" x 1/2" x muscle deep on left side chest, 1½ above and slightly outer from left nipple. Margins were clean cut and regular with tailing 1/8" on the lower end. Direction of the wound was from above to downward. 3. Incised wound 1/2" x 1/4" x skin deep on left side of chest, 1" lateral from left nipple. Margins were clean cut and regular with tailing 1" at lower end. Direction of the wound was from above to downward. 4. Stab wound 1" x 1/2" cavity deep left side chest, 2" below left nipple. Direction of the wound was from outward to inward. Margins were clean cut and regular. 5. Stab wound 1" x 1/2" x cavity deep on left side chest, 1/4" medial from injury no.4. Margins were clean cut and regular. Direction of the wound was from outerward to inward. 6. Incised wound 1" x 1/2" x muscle deep on left arm outer, 3½" above the elbow joint with tailing and 1/8" on the outer end. Direction of the wound was from inner side to outer. Margins were clean cut and regular obliquely placed. 7. Incised wound 1½" x ¼" x muscle deep on back and left fore-arm, 2" below left elbow joint, transversely placed with tailing and 1/8" on the outer end. Direction of the wound was from inner side to outer side. Margins were clean cut. 8. Incised wound 1 ¼" x ½" x muscle deep with tailing and 1/8" on lower end, obliquely placed on front and left thigh, 3½" above knee joint. Direction was from above to downward. Margins were clean cut and regular. 9. Direction of the wound was from inner side to outer side. Margins were clean cut. 8. Incised wound 1 ¼" x ½" x muscle deep with tailing and 1/8" on lower end, obliquely placed on front and left thigh, 3½" above knee joint. Direction was from above to downward. Margins were clean cut and regular. 9. Incised wound ¼" x ¼" x skin deep with tailing and 1/8" on the above and on middle third and back ½" left from mid-line. Direction was from below to downward. 10. Linear abrasion 1" long on the top and right shoulder joint, vertically placed. 11. Abrasion ¾" x ¼" on the front and right thigh middle third. 7. On the internal examination of the said dead body left pleura and left lung of the deceased was found punctured and there was about two pound of blood in the chest cavity. Pericardium on the left side was found punctured at two places and the heart of the left side was too found punctured at two places. There was about two ounces of semi-digested food in the stomach of the deceased. In the opinion of the doctor the cause of death was due to shock and haemorrhage as a result of the injuries received by the deceased. The doctor further opined that the injuries received by the deceased were in the ordinary course of nature sufficient to cause death and that external injuries no.2 to 9 could have been caused by some sharp edged weapon like a knife, tabal and kirpan, while injuries no.10 and 11 could have been caused by friction against some hard substance. The said doctor had prepared the post-mortem examination report (Ex.Ka.24) at the time of his examination. 8. Inspector V.P. Singh had investigated the case. He had interrogated witnesses Zarif, complainant Rais Ahmad and others. After inspecting the scene of the incident, he had prepared the site-plan (Ex.Ka.20). After completing the investigation submitted the charge sheet (Ex.Ka.22) against the accused persons. 9. The case of the defence is that no such incident took place and the accused denied the prosecution allegations and stated that they have been falsely implicated in this case due to enmity. 10. After completing the investigation submitted the charge sheet (Ex.Ka.22) against the accused persons. 9. The case of the defence is that no such incident took place and the accused denied the prosecution allegations and stated that they have been falsely implicated in this case due to enmity. 10. The prosecution in support of its case has examined Zarif Ahmad (P.W.1), complainant Rais Ahmad (P.W.2), constable Raj Kumar (P.W.3), constable clerk Rajendra Singh (P.W.4), Sub-Inspector Hari Raj Singh (P.W.5), Inspector V.P. Singh head constable Pirthvi Raj (P.W.7) and Dr. R.K. Sharma (P.W.8). Besides examining the above said witnesses in support of its case, the prosecution has also tendered in evidence the affidavit and application of Yasin (Ex.Ka.25 and Ka.26) and also the affidavit and application of Vinod (Ex.Ka.27 and Ka.28). It has further tendered in evidence the report of the chemical examiner (Ex.Ka.29). 11. The accused in their defence have, however, examined Dr. D.P. Arora (D.W.1) and complainant Rais Ahmad (P.W.2) have been examined by the prosecution as eye-witnesses of this incident. However, amongst these two witnesses of fact, Zarif Ahmad (P.W.1) has turned hostile to the prosecution and has not supported the prosecution version of the occurrence. The testimony of constable Raj Kumar (P.W.3), constable clerk Rajendra Singh (P.W.4), sub-Inspector Hari Raj Singh (P.W.5), Inspector V.P. Singh (P.W.6) and head constable Prithvi Raj (P.W.7) is more or less of a formal nature. Dr. R.K. Sharma (P.W.8) however, given medico-legal evidence connected with this crime. The testimony of Dr. D.P. Arora (D.W.1), Pharmacist Tilak Ram Sharma (D.W.2) and Ward-boy Anil Kumar (D.W.3) as well is more or less of a formal nature. 12. P.W.2 Rais Ahmad who is the complainant of the case and also an eye-witness of the occurrence has deposed before the trial court reiterating the prosecution story as has been stated by him which has taken place in the Sarrafa Bazar where he had gone to purchase some silver ornaments and had witnessed the incident. He stated that three accused persons assaulted the deceased with Tabal, Knife and Kripan with respective weapons and chased him to the godown of Nafees where he was assaulted by them and the incident was witnessed by the complainant along with Zareef, Shafiq and Vinod Kumar and other persons. As the deceased had received injuries and his condition deteriorated. He stated that three accused persons assaulted the deceased with Tabal, Knife and Kripan with respective weapons and chased him to the godown of Nafees where he was assaulted by them and the incident was witnessed by the complainant along with Zareef, Shafiq and Vinod Kumar and other persons. As the deceased had received injuries and his condition deteriorated. The complainant took him on rickshaw to the hospital and he succumbed to his injuries on the way. The complainant left the deceased in the hospital and went to lodge the FIR to the Police Station. It was further stated by him that blood was also found at the place of occurrence. He further stated that the accused persons were related to him as they were the sons of his Bua. The deceased was wearing a shirt, baniyan and paijama at the time of incident and there were blood-stained found on it. He further deposed that the deceased was also related to him and further explained his relationship with the family of the deceased before the trial court. 13. P.W.1 Zarif Ahmad who was also an eye-witness has turned hostile and did not support the prosecution case. P.W.3 Raj Kumar was a police constable who had taken the dead-body of the deceased in a sealed condition on 18.5.1980 from the hospital to mortuary and further deposed that the dead-body was continuously in his custody in the sealed condition. P.W.4 Rajendra Singh was the clerk constable at the concerned police station where FIR was lodged and proved Ext. Ka.1 and Chik FIR as Ext.Ka.3 and also endorsed the lodging of the FIR in the general diary (Ext.Ka.4) of the concerned Police Station. He further stated that he has received memo from the hospital regarding death of the deceased which was also endorsed by him in the general diary no.27 at 1.45 p.m. on 17.5.1980. P.W.5 Hari Raj Singh Tyagi is the Sub-Inspector who has conducted the inquest (Panchayatnama) and sent letters to R.I and C.M.O and sent the dead-body for post-mortem after the inquest through the constables in the sealed condition. 14. P.W.6 V.B. Singh who was the Investigating Officer of the case conducted the investigation and recorded the statement of the witnesses and had sent the blood-stained earth from the place of occurrence, prepared the site-plan of the place of occurrence and submitted charge sheet Ka.22 against the accused. 14. P.W.6 V.B. Singh who was the Investigating Officer of the case conducted the investigation and recorded the statement of the witnesses and had sent the blood-stained earth from the place of occurrence, prepared the site-plan of the place of occurrence and submitted charge sheet Ka.22 against the accused. P.W.7 Prithviraj is the Head Constable who has proved general diary entry no.31 dated 17.5.1980 at about 16.05 which has been written by constable clerk Niranjan Lal and proved it as Ext.Ka.23. P.W.8 Dr. R.K. Sharma was posted as Medical Officer at Muzaffarnagar District Hospital on 18.5.1980 and he had conducted the post-mortem of deceased Shafiq Ahmad at about 8 p.m. and proved post-mortem report. He submitted that the deceased was aged about 24 years. In his examination-in-chief, he has specifically stated that the injuries received by the deceased were sufficient in the ordinary course of nature to cause death and the injuries no.2-9 were caused by sharp-edged weapons like Tabal, Knife and Kripan and the injury no.10 was caused by friction and has proved the post-mortem report as Ext.Ka.24. 15. It has been argued by learned Amicus-curiae for the appellant that there is a solitary witness of the occurrence i.e. P.W.2 Rais Ahmad. Relying upon his evidence, the trial court has acquitted the two accused namely Sharif Ahmad and Ilyas who were armed with Tabal and Kripan and the injuries sustained by the deceased as per the evidence of Dr. R.K. Sharma (P.W.8) who had conducted the post-mortem of the deceased deposed that the injuries sustained by the deceased were of sharp-edged weapons and could also be caused by Tabal and Kripan and the trial court has acquitted the two accused persons on the same evidence and has convicted the appellant only on the basis that P.W.2 has deposed before the trial court in his cross-examination that the deceased died due to injuries caused by the knife. This witness also stated that he has informed the Doctor at about 1 p.m that the deceased died due to injuries sustained by knife. It is argued that ante-mortem injuries of the deceased shows that he has received injuries by sharp-edged weapons which are incised wound as well as stabbed wounds and it cannot be said that the deceased received injuries only by knife and not by other weapons such as Kripan or Tabal. It is argued that ante-mortem injuries of the deceased shows that he has received injuries by sharp-edged weapons which are incised wound as well as stabbed wounds and it cannot be said that the deceased received injuries only by knife and not by other weapons such as Kripan or Tabal. The finding recorded by the trial court that the deceased died due to injuries sustained by knife is against the evidence on record. He submitted that the two accused who have been acquitted and given benefit of doubt by the trial court on the ground that their participation in the said incident appears doubtful, though from the medical evidence and other evidence on record their participation cannot be ruled out, hence the same benefit should be also extended to the accused as the injuries sustained by the deceased is also a result of Kripan as the margins are clean cut. He argued that no recovery of any knife has been made by the police during investigation. He submitted that no independent witness has come forward to support the prosecution story as has been stated by the P.W.2, hence it is not safe to rely upon the evidence of the solitary witness P.W.2 to convict the accused. He further pointed out that no Government Appeal has been filed by the State against the acquittal of the two accused by the trial court, hence the appellant should also be acquitted by this Court. 16. Per contra Sri R.K. Singh, learned AGA argued that the incident has taken place in broad-day-light and the appellant along with other accused persons are said to have assaulted the deceased with tabal, knife and kripan and the deceased has received several injuries on his person of sharp edge weapon. P.W.2 deposed that the injuries were inflicted on deceased by knife by the appellant which is also supported by the deposition of P.W.8 Dr. R.K. Sharma who has also stated that the injuries could be caused by knife, therefore, the conviction and sentence of the appellant by the trial court is fully justified. 17. Considered the submissions advanced by learned counsel for the parties and perused the record. 18. R.K. Sharma who has also stated that the injuries could be caused by knife, therefore, the conviction and sentence of the appellant by the trial court is fully justified. 17. Considered the submissions advanced by learned counsel for the parties and perused the record. 18. It transpires from the evidence of eye-witness P.W.2 Rais Ahmad that the deceased was assaulted in Sarrafa Bazar near a mosque by the appellant and two other accused Sharif and Ilyas with knife tabal and kripan and thereafter the deceased was chased in the fruit godown of one Nafees where he was again assaulted by the three accused persons with their respective weapons. It is the categorical case of the prosecution that the deceased was assaulted by the three accused persons with their respective weapons and the post-mortem also shows that he has received several incised wounds and also stabbed wound on his person which can be caused by sharp-edged weapons such as tabal and kripan. The doctor R.K. Sharma, P.W.8 has also stated in his deposition before the trial court that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause his death which could be caused by sharp-edged weapons like tabal, knife and kripan due to which the deceased succumbed to his injuries. It further transpires from the record that P.W.2 is the only solitary witness of the incident and the other eye-witness P.W.1 Zareef has turned hostile and the trial court has acquitted the two accused persons namely Sharif Ahmad and Ilyas who were armed with tabal and kripan respectively on the ground that P.W.2 has stated to the doctor when he had brought the deceased to the hospital in a dead condition that the deceased died on account of injuries sustained by knife. P.W.8 Dr. R.K. Sharma in his cross-examination has also stated that the death was possible by knife. Moreover, D.W.1 D.P. Arora who had made an endorsement in the death register on the information given by P.W.2 that the deceased died due to injuries of knife. The trial court believing the said evidence has acquitted the said two accused persons and convicted the appellant who is stated to have been armed with a knife. Moreover, D.W.1 D.P. Arora who had made an endorsement in the death register on the information given by P.W.2 that the deceased died due to injuries of knife. The trial court believing the said evidence has acquitted the said two accused persons and convicted the appellant who is stated to have been armed with a knife. The said finding of the trial court appears to be erroneous and against the evidence on record as the injuries sustained by the deceased shows that he has received injuries of sharp-edged weapons such as tabal, knife and kripan. The ante-mortem injuries of the deceased also shows that the margins were clean cut and the said injuries could also be possibly caused by kripan as well as tabal has been also deposed by P.W.8 Dr. R.K. Sharma in his deposition before the trial court. Therefore it cannot be conclusively said that the deceased died as a result of the injuries caused by knife. Hence the acquittal of the accused Sharif Ahmad and Ilyas and the conviction of the appellant by the trial court cannot be justified in view of the medical evidence. 19. Learned AGA could not dispute the fact that no Government Appeal has been filed by the State against the acquittal of the two accused by the trial court. Moreover, there has been no recovery of any knife made from the possession of the appellant during investigation by the Investigating Officer. The conviction of the appellant on the basis of solitary testimony of P.W.2 Raiz Ahmad without there being further corroboration by any other independent witness regarding the incident, does not appear to be safe particularly when on the basis of same evidence the two equally situated accused have been acquitted by the trial court. The learned AGA also could not dispute the fact that the injuries sustained by the deceased could possibly also be caused by sharp-edged weapons like kripan and tabal and the same can not be only the result of injuries of knife as the cause of death was shock and haemorrhage as a result of ante-mortem injuries. 20. Unfortunately the State has not been vigilant in enforcement of criminal law and regrettably it has not preferred an appeal against the acquittal of accused Sharif Ahmad and Ilyas and the conviction of the appellant on the basis of the same evidence appears to be unreasonable and cannot be justified. 20. Unfortunately the State has not been vigilant in enforcement of criminal law and regrettably it has not preferred an appeal against the acquittal of accused Sharif Ahmad and Ilyas and the conviction of the appellant on the basis of the same evidence appears to be unreasonable and cannot be justified. Hence consistency compells us to reach the conclusion that the appellant be also given benefit of acquittal of the equally placed co-accused by the trial court for the reasons recorded above and also taking into account that the incident has taken place 34 years ago and the incident has become old and stale. 21. In this regard the judgment of the Apex Court in the case of Bansilal Vs. State of M.P. 1982 V-3 SCC page 370 (2) may also be taken into account wherein the Apex Court has given benefit to the accused whose position was no different to that of co-accused who was entitled to acquittal. 22. Similarly in a recent case of the Apex Court in the case of Prabhat alias Bhai Narayan Wagh and others Vs. State of Maharastra reported in 2013 V-10, SCC 391, wherein the trial court has convicted some of the accused and acquitted the rest of the accused persons which was affirmed by the High Court on the same set of evidence, the Apex Court has acquitted the accused persons who were convicted by the trial court giving benefit to the accused to that of the accused who were acquitted by the trial Court. 23. In view of the foregoing discussions, the judgment and order passed by the trial court convicting and sentencing the appellant is wholly unjustified, hence the same is hereby set-aside and the appellant Salim is acquitted of all the charges. He is on bail. He need not surrender. His bail bond and sureties are discharged. 24.The appeal stands allowed. _____________