JUDGMENT Hon’ble Shashi Kant Gupta, J.—This criminal appeal has been preferred by the appellant Ram Narain against the judgment and order dated 20.7.1983 passed by the Sessions Judge, Fatehpur in Sessions Trial No. 332 of 1982 under Section 302 IPC, Police Station Jahanabad, District Fatehpur whereby the accused-appellant Ram Narain has been found guilty of committing the murder of Kallu Sahu and has been convicted and sentenced under Section 302 IPC to undergo imprisonment for life. 2. The prosecution version as projected in the FIR is that the accused was married and lived in village Deochali. His father Kallu Sahu lived at village Naseniya alone outside the village Abadi in a thatched hut. The accused was a peon in Amauli college, P.S. Chandpur and his wife had a Parchoon (Grocery) shop there. Some time back the appellant Ram Narain is alleged to have borrowed Rs. 2000/- from his father for opening a shop. The deceased father used to demand back his money from the appellant Ram Narain. On 26.6.1982 also when the accused visited the village in the morning the deceased father Kallu Sahu demanded back his money. The accused did not relish this. That very day in the evening when Ram Dhani (P.W.1), another son of the deceased and brother of the accused alongwith Shambhu (P.W.2), Santosh and Sukhlal went to the deceased for taking him to attend the “Tel ceremony” of Dulare son of Jagdev a cousin of Ram Dhani (P.W.1), they then heard the cries of the deceased Kallu Sahu shouting for help to save him from Ram Narain who was trying to kill him. They rushed to his hut and saw the accused Ram Narain assaulting Kallu Sahu with an axe inside the hut and two unknown persons were standing outside who immediately escaped after seeing them. It was further alleged that the accused Ram Narain in order to scare the witnesses opened fire and escaped and due to fear could not follow him. The complainant Ram Dhani then left Santosh and others with his injured father Kallu Sahu and went to get a bullock-cart. Then he returned with the bullock-cart alongwith a few villagers and put the deceased Kullu Sahu in it and took him towards the police station. But at about 7 O’clock in the morning he succumbed to his injuries near Panihanala. A written report of the occurrence Ext. Then he returned with the bullock-cart alongwith a few villagers and put the deceased Kullu Sahu in it and took him towards the police station. But at about 7 O’clock in the morning he succumbed to his injuries near Panihanala. A written report of the occurrence Ext. Ka 1 was lodged by Ram Dhani at the police station at 8 A.M. On 27.6.82. Head Moharir Bishambhar Nath Dubey scribed the chick report of this case Ext. Ka 12 on the basis of the written report at 8 AM on 27.6.82 and simultaneously registered a case in the G.D. at serial No. 11, a copy of which is Ext. Ka 13. 3. The investigation of the case was entrusted to Sri Kaptan Singh Yadav S.O. P.W.4 and S.I. Jagjivan Singh P.W. 3. The inquest was conducted on the dead body at the gate of the police station. S.I. Jagjivan Singh prepared the inquest memo Ext. ka 2, diagram of the dead body, challan of the dead body and the letter was sent for post-mortem to the C.M.O, Ext. Ka 3-Ka 6. He sealed the dead body in a cloth and prepared the sample seal Ext. Ka7. He also took the blood stained clothes found on the dead body and sealed them in bundle vide memo Ext. Ka 8 consisting of a kurta Baniyan, Angochha, Pancha and a chadar Exts. 1 to 5. The dead body alongwith the relevant paper was handed over to constables Kaushal Kishore and Man Singh for carrying it to the mortuary of Civil Hospital. 4. The investigating officer recorded the statement of Head Moharir Bishambar Nath Dubey as well as Ram Dhani P.W.1 Shambhu P.W.2 Sukhlal and Santosh as well as of the Panchas of the inquest. Thereafter he proceeded to the place of occurrence reaching there at 12 noon and prepared the site plan of the place of occurrence Ext. Ka 9. He took blood stained and plain earth in separate containers Exts. 6 and 7 respectively and sealed it vide memo Ext. Ka 10. 5. The post-mortem examination on the dead body of Kallu was held by Dr. M.M Raizada at 4.30 PM on 27.6.82 found frothy mucous stains over both the nostrils and rigor mortis to have passed off from both the upper and lower limbs. Greenish brown discolouration of skin on outer abdomen was present. Ka 10. 5. The post-mortem examination on the dead body of Kallu was held by Dr. M.M Raizada at 4.30 PM on 27.6.82 found frothy mucous stains over both the nostrils and rigor mortis to have passed off from both the upper and lower limbs. Greenish brown discolouration of skin on outer abdomen was present. He found the membranes and brain congested, 2 ounces of semi digested food in the stomach, small intestine empty faecal matter present in the large intestine and bladder empty. In the opinion of the doctor Kallu Sahu had died due to coma as a result of head injury. The following ante-mortem injuries were found on the dead body : i. Incised wound 3" x ½ x cut underneath bone or right side skull 2 ½ above left ear with fracture of the parietal and temporal bone directed transversely. ii. Incised wound 1 ½ x ½ x cut underneath bone on right side skull 2 ½ above right eye brow, directed transversely. iii. Incised wound 1 ½ x cut underlying bone on right side skull ½ medial to injury No. 2 2 ½ above right eye brow. iv. Incised wound 2 ½ x ½ x cut underlying on the right side skull ½ medial to injury No. 3, 1 above right eye brow directed transversely. v. Incised wound 6 ½ x ¼ x both underlying frontal bone cut and fractured just above the root of nose directed obliquely. vi. Incised wound 1" x ½ x soft tissue deep on the right side forehead just lateral to the right eye. 6. The accused surrendered in Court on 27.7.82 and the Investigating officer thereafter concluded the investigation and submitted the charge-sheet Ext. Ka 11 against the accused on 30.7.82. 7. As a result of this charge-sheet the accused was committed to Sessions by Sri R.P. Singh C.J.M., Fatehpur vide his order dated 15.10.82. 8. A charge under Section 302 IPC was framed against the accused. He pleaded not guilty to the same and claimed to be tried. In his statement under Section 313 Cr.P.C. the accused admitted that complainant Ram Dhani was his real brother. 8. A charge under Section 302 IPC was framed against the accused. He pleaded not guilty to the same and claimed to be tried. In his statement under Section 313 Cr.P.C. the accused admitted that complainant Ram Dhani was his real brother. He also admitted that he was living in his Sasural at village Deochali for the last 6 or 7 years before the occurrence and was a peon in Amauli school at the time of the occurrence and also had a Parchoon (Grocery) shop which was taken care of by his wife. He denied the rest of the prosecution allegations and contended that his father deceased Kallu Sahu had participated in the Tel ceremony at his house and thereafter had gone to sleep in the Madayya and it was rumoured that some body murdered him in the night. He has ascribed his false implication in the case to enmity, with his brother Ram Dhani and nephew Shambhu P.Ws. 1 and 2 respectively. He also filed his written statement of defence under Section 313 Cr,P.C which is part of his statement wherein he inter alia stated that they (brothers) were not giving the accused his share in the land and the tube well, and that Ram Dhani had taken possession of whole house jointly purchased by him and Ram Dhani refused to give his share, therefore the deceased decided to give four bigha grove to him which was in the possession of the deceased and was about to execute the document. Due to this reason Ram Dhani and Shambhu were annoyed with the appellant and his father which led to mar-peet between Ram Dhani and the accused before the alleged death of his father. His father was murdered at about mid night when he had retired to bed in his Madayya after attending the Tel ceremony of Dulare. When in the morning at 4 AM his dead body was discovered Ram Dhani went to the police station and in order to grab the property of Ram Narain in collusion with the police got a false case concocted against him. When Ram Prasad and others came to know about the truth of the matter they gave affidavits in the Court in favour of the appellant and did not support the prosecution case. He claimed to have been present at the time of occurrence at Kanpur. 9. When Ram Prasad and others came to know about the truth of the matter they gave affidavits in the Court in favour of the appellant and did not support the prosecution case. He claimed to have been present at the time of occurrence at Kanpur. 9. In order to bring home the charges the prosecution has examined Ram Dhani and Shambhu P.Ws1 and 2 as the two witnesses of fact. Besides them the prosecution has examined S.I. Jagjivan Singh who held inquest on the dead body as P.W.3, Dr. M.N. Raizada who held post-mortem on the dead body as P.W.5 and S.I. Kaptan Singh S.O. who conducted the investigation of the case as P.W.4. The prosecution also tendered in evidence affidavit of constable Kaushal Kishore in evidence who carried the dead body for post-mortem examination as Ext. Ka 15. 10. According to the prosecution the deceased used to demand back the money owed by the appellant. Annoyed by the persistent demand of money advanced to him by the deceased he committed murder of the deceased. 11. Learned counsel for the appellant has submitted that an improbable and unbelievable story has been set up by the prosecution. It is quite unbelievable that the accused, who is the son of the deceased Kallu Sahu, will murder his father just because he was asking him to return Rs. 2000/- especially when he has earnings from his job, shop run by his wife and 2-1/2 Bigha of fertile agricultural land. Learned counsel for the appellant has further stated that the prosecution witnesses i.e. P.W. 1-Ramdhani and P.W. 2-Shambhu were inimical to him because of the land dispute as their father wanted to give away some portion of the grove (Bageecha) to the accused. He further submitted that P.W. 1-Ramdhani and P.W. 2-Shambhu are the chance witnesses and it is very difficult to believe that they reached the place on that very moment when the murder was being committed. He further submitted that the nature of the injuries sustained by the deceased Kallu Sahu clearly indicates that a man of 95 years of age would die instantly on the spot and there was no possibility of his remaining alive for 12 hours after the alleged incident. In this connection, learned counsel for the appellant referred to the statement of the P.W. 5-Dr. In this connection, learned counsel for the appellant referred to the statement of the P.W. 5-Dr. M.N. Raizada, wherein he has stated that the deceased could not have remained conscious after the incident. Learned counsel for the appellant further referred to the Post-mortem report and the statement of the Doctor, wherein he stated that the presence of semi digested food in the stomach of the deceased showed that the food was taken about 6 hours before the death and the deceased could have died at midnight of 26/27.6.1982. 12. He further submitted that there is a material contradiction in the testimony of the prosecution witnesses. P.W. 1 Ramdhani has stated that “Tel Ceremony” of his nephew Dulare did not take place after the murder of the deceased while P.W. 2-Shambhu has stated that the ceremony did take place and a feast was also organised. It was further submitted by him that it is difficult to believe that a marriage ceremony or feast could happen in the family where the grandfather of the boy was murdered. Performing of the Tel Ceremony function and holding a feast also leads to the conclusion that the the deceased was not murdered at 6.30 PM but at mid night when he went back to Maddaya to sleep. Therefore the aforesaid fact also creates suspicion with regard to the time of death of the deceased. 13. Per contra, learned A.G.A has supported the case of the prosecution and has stated that the First Information Report has been scribed by one Ram Prasad Sahu. The close relatives i.e. P.W. 1 (brother) and P.W. 2 (nephew) of the appellant Ram Narain have been shown as witnesses of the incident in the said case and this circumstance clinchingly establishes the fact that the prosecution version in respect of the act of death being committed by his own son Ram Narain stands fortified and there is no reason whatsoever for them that they would falsely implicate the accused appellant Ram Narain. 14. He further stated that during the course of trial the complainant has deposed as P.W. 1 and from his testimony the prosecution case stands clinchingly established. Even during the course of cross-examination he has fully corroborated the prosecution story which inspires confidence and as such the said witness being the most natural and truthful witness had been rightly relied upon by the Trial Court. Even during the course of cross-examination he has fully corroborated the prosecution story which inspires confidence and as such the said witness being the most natural and truthful witness had been rightly relied upon by the Trial Court. It was further contended that from the evidence of P.W. 1, it is quite clear that the victim/deceased Kallu had given a sum of Rs. 2,000/- as loan to his son Ram Narain who repeatedly demanding back. However, despite repeated demands the accused appellant Ram Narain did not return the borrowed money and instead felt bad about it and said that by evening he would return the money, however, in the evening when the witnesses P.W. 1 and P.W. 2 alongwith Sukh Lal and Santosh went to bring him to the house for attending the marriage ceremonies they found the appellant Ram Narain assaulting his father with a Kulhari (Axe) and on their reaching had opened fire to scare them and made his escape good. The said version of the witness stands fully corroborated from the facts and circumstances of the case and inspire confidence. The only suggestion that the defence tried to put is that there was some differences between the brothers for the plot of land which the appellant possessed, however, clinching and overwhelming evidences have led to believe that during his life time his father had given respective shares to each son including the accused appellant Ram Narain, who used to cultivate the same through his brother and use to get the agricultural produce from them. 15. He further submitted that due to some trivial differences his real brother (PW 1) and nephew (PW 2) would not falsely implicate him in the murder of his own father. P.W.1 and P.W. 2 have supported the prosecution version in all material particulars and despite extensive cross-examination his testimony has not at all been dented and therefore being reliable and truthful witness his testimony has rightly been relied upon by the Trial Court. 16. P.W.1 and P.W. 2 have supported the prosecution version in all material particulars and despite extensive cross-examination his testimony has not at all been dented and therefore being reliable and truthful witness his testimony has rightly been relied upon by the Trial Court. 16. He has further submitted that even PW-2 who is the real nephew of the appellant has also corroborated the prosecution case in all material particulars and despite extensive cross-examination he has fully corroborated the prosecution story and has completely denied the factum of any difference between him for reason that deceased wanted to transfer the grove in favour of appellant Ram Narayan which was not relished by them as such they had falsely implicated the appellant in the present case, the said argument of defense also does not hold good in view of the positive evidence of the prosecution establishing the guilt of the accused. 17. Heard Sri Sarvesh, learned counsel for the appellant, Sri Rajeev Gupta, learned AGA appearing on behalf of the State and perused the record. 18. According to the prosecution case, the incident of alleged murder is said to have been committed on 26.6.1982 at 6.30 PM. F.I.R was lodged at the Police Station Jahanabad, District Fatehpur on 27.6.1982 at the instance of one Ram Dhani son of the deceased Kallu wherein it was alleged that his younger brother Ram Narayan who lived in his Sasural in Village Deochali borrowed Rs. 2,000/- from the deceased Kallu for opening a shop about two years back. Whenever the accused-appellant come home he (Kallu) used to demand his money back from him for raising a “Chabutara” of Lord Shankar. It was further alleged that on the fateful day, when the accused Ram Narayan came to the village in the morning then deceased Kallu again demanded his money back which annoyed Ram Narayan. It was further alleged that in the evening when complainant’s father was in his hut at his Orchard, he (informant) alongwith Santosh Kumar, Sambhu and Sukh Lal went to him at 6.30 PM on the fateful day to bring him to the house to enable him to attend the Tel Ceremony of his nephew Dulare. When they reached there, they heard the shriek/shout of his father. They rushed inside and saw Ram Narayan killing his own father by wielding Kulhari (Axe) and also saw two unknown persons standing there who escaped immediately. When they reached there, they heard the shriek/shout of his father. They rushed inside and saw Ram Narayan killing his own father by wielding Kulhari (Axe) and also saw two unknown persons standing there who escaped immediately. It was further alleged that Ram Narayan in order to scare witnesses opened fire and escaped. Thereafter the informant after getting the bullock cart from his house proceeded to the Police Station, however on the way the deceased succumbed to his injuries at 7 O’clock in the morning. Where after he took the dead body to the police station and lodged the First Information Report. The First Information Report was scribed in the morning out side the Police Station by Ram Prasad Sahu, the real brother of the appellant Ram Narayan. 19. Prosecution has examined Ram Dhani and Shambhu P.Ws 1 and 2 as the witnesses of fact. Except the aforesaid two persons none of the witnesses mentioned in the FIR were produced by the prosecution. It is notable that the deceased Kallu, who was aged about 95 years was living all alone in a hut situated at his Orchard “Bageecha” outside the village abadi about one mile away from the house of the informant Ram Dhani. The motive attributed by the prosecution was that the appellant had taken Rs. 2,000/- from his father, who constantly demanded it back which annoyed him and he then consequently killed his own father with the aid of two unknown people. 20. It is not disputed that the appellant used to live in his Sasural in Village Deochali and was employed as a Peon in a School at Amauli and was also carrying on a grocery shop, which was being managed by his wife. It has been alleged that the grand son of the deceased was getting married on 27.6.1982 and on 26.6.1982, Tel ceremony was to be performed. Therefore, the informant in order to enable the deceased to attend the ceremony went to him alongwith other persons to bring him to his house. When they reached the spot they witnessed the alleged incident. 21. It is notable that the other two relatives of the informant namely Sukh Lal (brother) and Santosh (nephew) who had allegedly witnessed the scene were not produced in the Court by the prosecution for recording their evidence. 22. When they reached the spot they witnessed the alleged incident. 21. It is notable that the other two relatives of the informant namely Sukh Lal (brother) and Santosh (nephew) who had allegedly witnessed the scene were not produced in the Court by the prosecution for recording their evidence. 22. It has been admitted by the P.W. 1-Ram Dhani in his testimony that the residential house, which was occupied by him was purchased jointly by him and the appellant around five years back, but the same was being occupied exclusively by him (informant). It has also been admitted by P.W. 1 that on the fateful day the accused-appellant Ram Narayan had asked him to vacate his residential portion, which was in his exclusive possession. It has also been admitted in paragraph 13 of his testimony that the accused-appellant earlier had tried to plough the agricultural field forcibly which resulted in an altercation between the appellant and P.W. 1 Ram Dhani. 23. From the perusal of the testimony of P.W. 1 it is also clearly evident that the money was not demanded back by the deceased in the presence of the informant from the appellant on the fate-ful day. This fact (demand of money) according to him was told by the deceased before his death when he was brought in an injured condition from the Orchard “Bageecha” to his house at about 7.30 PM. P.W. 1 has further deposed that neither the ceremony of Tel Rasm was performed nor the feast was held to celebrate the marriage on the date of incident. P.W. 1 in his testimony further stated that when they were carrying deceased from the Orchard to their house, he was unconscious, however after drinking milk he regained consciousness. Thereafter, when Santosh (nephew) asked the deceased as to who killed him, he named the appellant Ram Narayan. P.W. 1 has further stated that he left his house in the morning at 4 O’clock carrying his father to the Police Station, which was about 12 Kms away, however he expired at about 7.30 AM on the way about 3 Kms before reaching the police station. 24. Perusal of the testimony of P.W. 2 Sambhu, nephew of the deceased Kallu also indicates that there was dispute between Kallu and his brothers with regard to sharing of the agricultural land/produce and tube well. For ready reference paragraph Nos. 24. Perusal of the testimony of P.W. 2 Sambhu, nephew of the deceased Kallu also indicates that there was dispute between Kallu and his brothers with regard to sharing of the agricultural land/produce and tube well. For ready reference paragraph Nos. 6, 7 and 8 of the testimony of the P.W.2 Shambhu, the nephew of the deceased is being quoted below : ^^6- Hkkb;ksa esa fV;wcosy dk >u>V gqvk mlesa jkeujk;u us fV;wcosy ys fy;k ysfdu dusD'ku jke/kuh ds uke gksus ds dkj.k iSlk jke/kuh dks nsuk iM+rk Fkk jkeujk;u ugha nsrs Fks blfy, jke/kuh us dry ls 4&6 eghus igys fV;wcosy ij dCtk dj fy;k jke/kuh vkSj jkeujk;u esa bl ckor ekjihV gqbZ FkhA rc ls jke/kuh vkSj jke ujk;u esa cksy pky ugha gS vkSj jke/kuh ge yksxksa ds lger ls dusD'ku dVok fn;k vkSj fV;wcosy dk lkeku csp dj djts dk :i;k csokd dj fn;kA cspus dh ckr dry ds ckn gqbZA 7- jke ujk;u dry ds fnu lqcg xkao vk;k FkkA eq>ls fV;wcosy ds ikl mlls eqykdkr gqbZ FkhA ml le; jke/kuh o dYyw Hkh FksA mlds ckn eq>s nwljh txg jke ujk;u ugha feykA ?kUVk vk/kk ?kUVk ckrphr gksrh jghA jke/kuh o dYyw o jke ujk;u esa ckrphr gksrh jghA 9&10 cts dk le; FkkA fV;wcosy dk >xM+k jke /kuh o jkeujk;u ds dry ls 2&3 eghus igys ls FkkA 8- cxhpk djhc 4 oh?kk dYyw vius Hkj.k iks”k.k ds fy;s vius dCts esa jD[ksa FkkA dVgy gtkj&ikap lkS :i;s dk fcdrk FkkA dYyw us vius dry ls 2&3 fnu igys dksbZ dVgy ugha cspk FkkA 2&3 eghus igys cspk FkkA ?kVuk ds le; Hkh isM+ksa ij dVgy yxs FksA gtkj Ms<+ gtkj :i;s dk lkykuk vkenuh ckx ls gksrh FkhA og vkenuh dYyw fdlh dks ugha nsrk FkkA Qwyk okys iwjs edku ij dCtk jke/kuh dk gS D;ksafd jkeujk;u viuh llqjky nsopyh esa jgrk gSA nsopyh ulsfu;ka ls 2&1@2 dksl ij gSA ulsfu;k ls vekSyh djhc 3 dksl gSA nsopyh ls vekSyh djhc 1 dksl gSA** Thus from the aforesaid statement of P.W. 2, it is clearly evident that P.W. 1 was inimical with the appellant and was not on talking terms and also indulged in mar-peet with the appellant. 25. It has also been further admitted by the P.W. 2 in his testimony that earlier he used to sit in the shop of the Ram Narayan but he was removed by him. 25. It has also been further admitted by the P.W. 2 in his testimony that earlier he used to sit in the shop of the Ram Narayan but he was removed by him. He further admitted that on the date of incident, the ceremony of Tel Rasm as well as feast was organized in the village. However, on the contrary P.W. 1 Ram Dhani in his testimony totally denied of having of any Tel ceremony or feast to celebrate the marriage in the village on the fate ful day. P.W. 2 has further deposed that on the oral dictation, the First Information Report was transcribed by the Police officer, however, according to the P.W. 1, the FIR was scribed by Ram Prasad, brother of the informant, outside the Police Station which was read over to him. Thus, there was a material contradiction in the evidence adduced by the P.W.1 and P.W. 2, which goes to the root of the matter. 26. P.W. 4-Kaptan Singh, S.O., Police Station Jahanabad, District Fatehpur in his testimony has stated that name of the scribe Ram Prasad was not mentioned in the G.D. It has also been admitted that from the place of incident neither any used cartridge nor pellets were found and the blood stained soil was not sent for chemical examination. 27. P.W. 5-Dr. M.N. Raizada, Medical Officer, District Hospital, Fatehpur, who conducted the post-mortem of the deceased Kallu has stated that traces of milk were not found in the stomach although semi digested food was found. He further stated that the deceased might have eaten food around 4 to 6 hours before his death because the food was found in semi digested stage. P.W. 5 in his testimony has very categorically stated that there was possibility of instantaneous death of the deceased, who could not have been in a position to speak anything after the incident. He further deposed that the death could also have occurred in the night of 26/27.6.1982. 28. Perusal of the aforesaid facts goes to show that the appellant was living separately in his Sasural which was far away from his native village and was employed as a Peon in a School. His grocery shop was being managed by his wife. The version of the P.W. 1 Ram Dhani that he had taken money from his father was not supported by any of the witnesses. His grocery shop was being managed by his wife. The version of the P.W. 1 Ram Dhani that he had taken money from his father was not supported by any of the witnesses. P.W. 1 Ram Dhani himself has deposed in his testimony that when his father was brought to the house after the incident in an injured condition he (deceased) had divulged the fact that he had demanded his money back from the accused-appellant Ram Narayan today i.e. on the date of incident. Thus it follows as a necessary corollary therefrom that the demand of money by the deceased from the accused-appellant was not made in front of P.W. 1 Ram Dhani on the fateful day. It is also very notable that the deceased Kallu was admittedly around 95 years old and was a weak and feeble person and the Doctor, who conducted the post-mortem, had himself categorically stated that it would not have been possible for the deceased to be concious and coherent and capable to speak after sustaining several injuries from a sharp edged weapon like an Axe and further stated that there was every possibility of his instantaneous death after the incident. 29. It is also notable that if the deceased was alive after the incident then why was he not taken immediately to the hospital. The alleged incident had occurred in the evening at 6.30 PM and there was no reason for not taking the deceased to the hospital and instead taking him to the house of the informant (where no medical aid was provided) and subsequently taking him in that condition at 4 O’clock morning directly to the Police Station. The conduct of the family members including P.W. 1 and 2 was quite unnatural. No person would have kept a 95 years old injured person in such a critical condition in the house till 4 O’clock in the morning instead of providing immediate medical aid. It is also most improbable that a 95 year old person after sustaining such grievous injuries on his vital parts (multiple fractures on his vital part including head and nose) by a sharp edged weapon like an Axe would remain alive upto 7 O’clock in the morning specially with no medical aid. In any event, with such grievous injuries, it was not possible to speak especially for a 95 years old. 30. In any event, with such grievous injuries, it was not possible to speak especially for a 95 years old. 30. It is also not understandable as to why Santosh, the nephew of the informant, who himself was the alleged witness of the incident should ask the deceased at all as to who killed him. 31. The story as given out by the prosecution that he (deceased) demanded his money back from the appellant appears to be concocted in order to give colour to the story. There is no cogent evidence on the record to show except the testimony of the P.W. 1 that Rs. 2000/- was taken by the appellant from his father few years back for opening a grocery shop. We have found on close examination as above, the testimony of the P.W. 1 is not free from doubt and lacking in trustworthiness. The appellant cannot be asked to prove a negative fact viz. That he had not taken any money from his father. 32. It is also notable that the cause of death has been shown in the Post-mortem report “died due to Coma as a result of anti mortem injuries” which shows that the deceased after sustaining the injuries went into Coma. It may also be noted that P.W. 2 in his testimony himself has stated that they had brought the “Laash” (dead body) of the deceased in the night itself from the Orchard and in the morning they had proceeded to the police station. The aforesaid statement of the P.W. 2 shows that the deceased had died on the spot and was not brought alive to the house. 33. The aforesaid statement of the P.W. 2 shows that the deceased had died on the spot and was not brought alive to the house. 33. The accused-appellant also filed his written statement of defence under Section 313 Cr.P.C which forms the part of his statement and was quoted by the Trial Court in his judgment which reads as follows : “He also filed his written statement of defence under Section 313 Cr.P.C, which is part of his statement in which he contended that some days before the occurrence his father had given out in presence of his brothers that since they were not giving the accused a share in the land and the tube well and Ram Dhani had taken possession on whole of the house purchased by him and the accused Ram Narayan jointly and was not giving Ram Narain’s share, therefore, the deceased would give four bigha grove kept by him in his possession and would be going any day to Bindki for executing the document. Due to this Ram Dhani and Shambhu were annoyed with his father and a marpit had also taken place between Ram Dhani and the accused before this occurrence; that his father was murdered at about midnight when he had retired to bed in his Madayya after attending the Tel ceremony of Dulare and when in the morning at 4 AM his dead body was discovered Ram Dhani went to the police station and in order to grab the property of Ram Narain in collusion with the police got a false case concocted against him. When Ram Prasad and others came to know about the truth of the matter they gave an affidavit in the Court and did not support the case. He claimed to have been present at the time of the occurrence in his Sarhuwan in District Kanpur.” 34. The testimony of P.W. 1 and especially P.W. 2 as well as the statement of the accused clearly goes to show that there was a dispute between the accused and his other brothers regarding to the sharing of the agricultural land/produce and the tube well and was also having a dispute with regard to his house with P.W. 1 Ram Dhani. The contention of the accused-appellant that his father was planning to give 4 bighas land of the orchard to him and would be going any day to Bindki to execute the document cannot be lost sight of. P.W. 2 himself has stated that P.W.1 was having dispute with the appellant, which led to mar peet between them. 35. There is a material contradiction between the statements of the P.W. 1 and 2 with regard to the solemnization of Tel Rasm and having a feast on the fateful day. According to P.W. 1 after the incident there was neither any Tel ceremony nor feast organized in the village whereas according to P.W. 2 Tel ceremony as well as feast was organized in the village. This apart, P.W. 1 and 2 were also the chance witnesses. It is all the more astonishing that the informant reached the spot that very moment when the accused-appellant was trying to kill his father having an axe in one hand and thereafter firing at them from the other hand with a country made pistol. The story of the prosecution does not inspire us. It is also very difficult to believe that a son would kill his father, who was around 95 years old simply because he was demanding his money back. No recovery of any weapon has been made. 36. It is also noticeable that the deceased Kallu, who was 95 years old was living all alone in the orchard situated far away from the house of his son (informant). This indicates that probably the informant and P.W. 2 were not having good relations with the deceased as nobody would allow his old father aged about 95 years to live all alone in the orchard. Even, the Doctor has opined that death could have occurred in the night of 26/27.6.1982. It is also notable that Ram Prasad, scribe of the First Information Report was not produced in evidence, on the contrary some affidavits were filed in support of the accused-appellant by him and his close relatives denying the prosecution story. Thus the prosecution version is not free from doubts and the allegations seems to be on a weakest wicket. 37. It is also notable that Ram Prasad, scribe of the First Information Report was not produced in evidence, on the contrary some affidavits were filed in support of the accused-appellant by him and his close relatives denying the prosecution story. Thus the prosecution version is not free from doubts and the allegations seems to be on a weakest wicket. 37. Considering the facts and circumstances of the case, we are of the considered opinion that the view taken by the Court below while convicting the accused-appellant is palpably wrong and the findings recorded by the Court below are perverse, erroneous and cannot stand the scrutiny of law. In our considered opinion the reasons given by the Trial Court are not sufficient to convict the accused-appellant. 38. In the facts and circumstances of the case and the evidence led by the parties renders the origin and genesis of the occurrence doubtful and as such the accused-appellant is entitled to benefit of doubt and acquittal. 39. On the basis of aforesaid discussion in our considered opinion and also applying the rule of caution, conviction of the accused-appellant namely Ram Narain cannot be sustained and is liable to be set-aside and in the circumstances of the case, the accused-appellant deserves acquittal. 40. The impugned judgment and order dated 20.7.1983 passed by the Sessions Judge, Fatehpur in Sessions Trial No. 332 of 1982 is set-aside and the appellant namely Ram Narain is acquitted of the charges levelled against him and his conviction and sentence are hereby quashed and set-aside. The appellant namely Ram Narain is on bail. He need not to surrender. His personal and surety bonds are hereby cancelled and sureties are discharged from their liability. 41. In the result, we find and hold that the present appeal has got merit and the appeal is allowed. 42. Let a copy of this judgment alongwith the trial Court record be sent to the Court concerned for compliance. ———————