JUDGMENT Surendra Vikram Singh Rathore, J. – Criminal Appeal No. 989 of 2011 has been preferred by appellants, Mitthu Lal alias Beni Madhav, Bharat Lal and Moti Lal, all sons of Ram Sagar and Criminal Appeal No. 982 of 2011 has been preferred by appellant Ram Sagar son of Gur Prasad. Since both these appeals arise out of the same judgment, hence both these are being disposed of together. 2. Heard Mr. S.M. Nasir, learned counsel for the appellants, Mr. M.Y. Ansari, learned A.G.A. for the State and perused the lower court record. 3. Under challenge in the instant appeals is the judgment and order dated 10.5.2011 passed by Special Judge (E.C. Act), Gonda in Sessions Trial No. 129 of 2000 arising out of Case Crime No. 23 of 2000, Police Station Kotwli Dehat, District Gonda, whereby all the aforesaid appellants were convicted and sentenced under Section 302 /34 I.P.C. and were sentenced with imprisonment for life and also with fine of Rs. 5,000/- each with default stipulation of four months additional imprisonment. 4. In brief the case of the prosecution was that complainant Smt. Gyanwati lodged an F.I.R. at Police Station Kotwali Dehat on 13.2.2000 at 10: 30 a.m. alleging therein that on 13.2.2000, her husband Pawan Kumar had gone to the Secretary Ram Sagar for getting his below poverty line card issued. At that time because of dispute, altercation took place in between Pawan Kumar and Ram Sagar due to which Ram Sagar and his sons Mitthu Lal alias Beni Madhav, Bharat Lal and Moti Lal caught hold of her husband inside his Dalan and hanged him on a hook and started giving blows of fists and slaps. The information of this incident was given by one Nankau, who happens to be the brother of the Nandoi (husband of sister in law) of the complainant. She immediately along with his son, Banshrup reached at the house of Ram Sagar in village Sufalpurwa at about 8: 00 a.m. where Jagat Narain alias Chhotkau, Ram Narayan, sister in law of the complainant Guttan and several other persons of the village were present. Channel gate of Ram Sagar's house was closed. The complainant side requested them with folded hands not to cause injuries to him and to leave him then the accused persons took down Pawan Kumar from the hook and threw him on the floor. Channel gate of Ram Sagar's house was closed. The complainant side requested them with folded hands not to cause injuries to him and to leave him then the accused persons took down Pawan Kumar from the hook and threw him on the floor. Accused Mitthu Lal caught hold of legs of Pawan Kumar, Bharat Lal and Moti Lal caught hold of his hand and Ram Sagar started giving blows with sickle to the deceased. The complainant side kept on crying. Thereafter Ram Sagar gave blows on the head of Pawan Kumar with axe and caused his death. On the basis of this report, the case was registered and inquest proceedings were conducted. The dead body was sent for postmortem. During course of investigation, on 13.2.2000, the weapon of offence i.e. axe and bloodstained clothes of appellant Ram Sagar were recovered on his pointing out and its memo was prepared in the presence of Radhey Raman and Shashi Lal. The postmortem on the corpse of Pawan Kumar was conducted on 14.2.2000 at 3: 30 p.m. and following injuries were reported by the doctor in post-mortem: - (i) Incised wound 2.5 cm. X 0.5 cm. X 6 cm deep on right side, 1 cm above the right eyebrow. (ii) Incised wound 1 cm x 0.3 cm x muscle deep on right side on the root of nose. (iii) Incised wound 0.5 cm x 0.2 cm x cartilage deep on nasion. (iv) Incised wound 2.5 cm x 1.2 cm x muscle deep on right side of lower lip. Two centrals incisors two lateral incisors teeth were missing. Clotted blood was present. Teeth were missing in right side upper jaw. (v) Incised wound 3 cm x 1 cm x bone deep on right side above right ear. (vi) Multiple abrasions in an area of 21 cm x 7 cm on forearm right hand. (vii) Abrasion 4 cm x 0.2 cm on lower ? of right forearm above the wrist joint. (viii) Multiple abrasion in an area of 17 cm x 13 cm on just right side of abdomen. (ix) Multiple abrasion in an area of 40 cm x 12 cm on lower part of right thigh. (x) Incised wound 2.5 cm x 0.3 cm x muscle deep on left leg. (xi) Abrasion 2 cm 0.3 cm on medial side of left knee. (xii) Abrasion 2 cm x 0.3 cm on left knee. (ix) Multiple abrasion in an area of 40 cm x 12 cm on lower part of right thigh. (x) Incised wound 2.5 cm x 0.3 cm x muscle deep on left leg. (xi) Abrasion 2 cm 0.3 cm on medial side of left knee. (xii) Abrasion 2 cm x 0.3 cm on left knee. (xiii) Abrasion 0.5 cm x 0.3 cm on back of left forearm. (xiv) Abrasion 0.5 cm x 0.2 cm and 1 cm x 0.3 cm on back of left arm. (xv) Abraded contusion 10 cm x 3 cm on lower ? of right forearm. (xvi) Abraded contusion 6 cm x 0.3 cm on back of lower ? of left arm, 4 cm above the wrist joint. In the opinion of the doctor, the duration of death was about 1¼ day and cause of death was shock and haemorrhage as a result of ante-mortem injuries. 5. After concluding the investigation, charge sheet was filed. 6. The case of the defence was of total denial and their false implication because of enmity. It was stated that because of some misunderstanding, on the instigation of the other persons, this F.I.R. was lodged against them. 7. In order to prove its case, prosecution has examined PW-1 Smt. Gyanmati, complainant of this case. PW-2 Jagat Narayan alias Chhotkau, who has been examined as eyewitness of this case. PW-3 Guttan, another eyewitness of this case, PW-4 Radhe Raman, an eyewitness of this case. PW-5 Dr. D.M. Saxena, who had conducted the postmortem on the body of the deceased. PW-6 S.I. Sarvar Khan, who has prepared chik report and G.D. of this case. PW-7 Banshrup, son of the deceased, who has been examined as an eyewitness. PW-8 S.O. Ali Mazhar, Investigating Officer of this case. PW-9 Shri Narayan, another eyewitness of this incident. PW-10 Rashi Lal is the witness of recovery memo of the rope, which was recovered from the house of the appellants. 8. No evidence in defence was adduced on behalf of the appellants. 9. After appreciating the evidence available on record, the trial court has convicted the appellants as above, hence the instant criminal appeal. 10. Learned counsel for the appellants has submitted that none of the prosecution witnesses has supported the prosecution case. Most of the witnesses have turned hostile and have not supported the prosecution case. 9. After appreciating the evidence available on record, the trial court has convicted the appellants as above, hence the instant criminal appeal. 10. Learned counsel for the appellants has submitted that none of the prosecution witnesses has supported the prosecution case. Most of the witnesses have turned hostile and have not supported the prosecution case. The trial court has convicted the appellant on the basis of the emotions and presumptions. He has also argued that the trial court has placed reliance on the statement given by the witnesses in their examination in chief and has totally discarded the statements in their cross examination without appreciating which of the two appears to be correct. So the approach of the trial court was not in accordance with law, which has rendered its judgment unsustainable under law. 11. Learned A.G.A. has submitted that the judgment of the trial court was in accordance with law and no illegality was committed by the trial court in the appreciation of evidence. The conviction of the appellants was based on correct appreciation of evidence. The impugned judgment is well reasoned and needs no interference. 12. Before proceeding further, first we will consider the medical evidence, which is in the form of postmortem report and the evidence of Dr. D.M. Saxena, who had conducted the postmortem on the body of the deceased. There is no dispute to the fact situation that the deceased was murdered by giving so many blows. He has received several incised wounds, lacerated wounds and several other injuries, which ultimately proved fatal. In the opinion of the doctor, the death of the deceased was possible at the time as stated by the prosecution. He has also stated that the injuries could have been caused in the manner and by the weapons as alleged by the prosecution. Thus the homicidal death of deceased Pawan Kumar at the time as claimed by prosecution stands established. 13. Now we proceed to consider the evidence of each witness. PW-1 Gyanmati happens to be the wife of the deceased. In her examination in chief, she has supported the case of the prosecution. She has stated that she got the information of this incident through Nankau in her village thereafter she along with her son reached there. 13. Now we proceed to consider the evidence of each witness. PW-1 Gyanmati happens to be the wife of the deceased. In her examination in chief, she has supported the case of the prosecution. She has stated that she got the information of this incident through Nankau in her village thereafter she along with her son reached there. According to her evidence, husband of her elder sister in law namely, Jagat Narayan, Nankau, Gulli and her sister in law were present there at that time. Pawan Kumar was hanging with the help of rope to a hook and the channel gate was locked. Thereafter she came back to her house and again went to the house of Ram Sagar then she found that the body of Pawan Kumar was taken down from the hook and blows were being given by Ram Sagar with axe and Bharat Lal was giving blows with sickle and Moti Lal and Dadu caught hold of hands and legs of the deceased. She has witnessed this incident from the channel gate. In her cross examination, she has stated that she lives in Dehva village, and the accused persons lives in Subhalpurwa. The distance between the village of the appellants and the village of the complainant was about 1½ and 2 kilometers in the south direction. She has stated that Nankau is the husband of her sister in law, who is resident of village Subhalpurwa. According to the initial version of the prosecution case, it was Nankau, who gave her information of this incident at her house situated at a distance of more than one and a half kilometers. Thereafter she came back to the place of occurrence. She again went from there to her house and she again came back then she saw the incident of murder. It does not appeal to reason that such incident would have continued for such a long time and the appellants would have waited for the arrival of the complainant. She has admitted that there was no prior enmity of this witness with the appellants prior to the incident. She has admitted in her cross examination that it was Nankau, who has given her information and on his information, she reached there and saw that her husband was hanging with a hook. She herself had not seen while he was being hanged. She has admitted in her cross examination that it was Nankau, who has given her information and on his information, she reached there and saw that her husband was hanging with a hook. She herself had not seen while he was being hanged. This witness was recalled with the permission of the court and cross examination was done wherein she has stated that her husband Pawan Kumar left the house one day prior to the incident. He had not told her as to where he was going. She got the information that her husband is being killed. However, she was not told as to who was killing him. On this information, she along with her son Banshrup, her uncle in law Radhey Shyam went to Subhalpurwa and saw that in front of the house of Chhotkau her husband Pawan Kumar was hanging in dead condition. She herself has not seen any one hanging her husband. This witness was cross examined by the prosecutor also wherein she has denied that she has not come to terms with the appellants and she is not giving false evidence. PW-2 Jagat Narain alias Chhotaku, who is brother in law (Jija of Pawan Kumar) has stated that he and some other persons were warming themselves in front of their house. They heard the cries of Ram Sagar's son who was crying for help because Pawan Kumar was going to kill his father. Then they went towards the house of Ram Sagar and found that quarrel was going on between Pawan Kumar and appellants. At that time, several persons of the village were present and the message was sent to the wife of Pawan Kumar. The persons present there intervened and scolded Pawan Kumar and thereafter quarrel was pacified and the appellants went to the police station to call the police and thereafter he became busy in his work. He has also admitted that Pawan Kumar was a man of criminal antecedent. He had beaten several persons and also beaten his wife. Thus, this witness has not supported the case of the prosecution in any manner and he was declared hostile. Even in cross examination by the prosecutor, nothing material could be elicited to lend support to the prosecution. PW-3 Guttan, was present at the scene of occurrence according to the complainant. She has given the same statement, which was given by PW-2 Jagat Narayan. Even in cross examination by the prosecutor, nothing material could be elicited to lend support to the prosecution. PW-3 Guttan, was present at the scene of occurrence according to the complainant. She has given the same statement, which was given by PW-2 Jagat Narayan. She was also declared hostile and was cross examined on behalf of the prosecution but nothing material could be elicited in her evidence to lend support to the prosecution. According to PW-4 Radhe Raman, he saw that Pawan Kumar was hanged in the hook with the help of rope in the house of Ram Sagar, the channel gate was closed and Gyanmati was present there. He had gone with Gyanmati to the police station and lodged the F.I.R. This witness was also a witness of inquest report. He has nowhere stated that the blows of axe and sickle were given by any of the appellants or his legs and hands were held by the remaining accused persons. So according to this witness, Gyanmati was present. So Gyanmati could have seen only that part of the incident, which was seen by this witness. So the statement of Gyanmati that he was taken out from the hook and blows of axe and sickle were given to him as stated by in her examination in chief becomes unreliable. Even the story that after getting the information by Nankau she came to place of occurrence after covering distance of 1½-2 kilometer, and again went to her village but came back again also makes her evidence highly unreliable. It cannot be presumed that appellants kept on waiting till the arrival of this witness. PW-5 is the doctor, whose evidence has already been considered by us. PW-6 is a formal witness, who has prepared chik report and G.D. of this case. PW-7 is Banshrup, who is son of the deceased. He has also given the same statement, which was given by PW-1 in her subsequent cross examination and has not supported the case of the prosecution. He has stated that about eight years prior to the incident, his father had left his house one day prior to the incident without disclosing as to where he was going. He has also given the same statement, which was given by PW-1 in her subsequent cross examination and has not supported the case of the prosecution. He has stated that about eight years prior to the incident, his father had left his house one day prior to the incident without disclosing as to where he was going. The next day, his Fufa Chhotkau came to his house and informed that the dead body of Pawan Kumar was lying in the Verandah of his house then he along with his mother and grand father Radhey Shyam went there and found that dead body of his father was lying there. The F.I.R. was lodged by his mother as she was asked to write by his Fufa Chhotkau. The house of the appellants was locked and none of the appellants was present in the house. Neither he nor his mother nor his grand father Radhey Shyam had seen his father receiving injuries at the hands of the appellants. This witness was declared hostile and was cross examined on behalf of the State but nothing material could be elicited to lend support to the prosecution. PW-8 Ali Mazhar is the Investigating Officer of this case. PW-9 Shri Narayan has stated that Pawan Kumar had come to his house in the morning at 8: 00 a.m. Deceased Pawan Kumar had gone to the house of appellants for the purpose of getting below poverty line card. After sometime, he heard cries. When he reached the house of Ram Sagar then he saw that the appellants were causing injuries to Pawan Kumar with knife and sickle. Both the hands of Pawan Kumar were tied with a hook and channel gate was closed. He, his bhabhi, brother Jagat Narayan, after breaking open the window of house of Ram Sagar, had entered into his house and Nankau went to call the wife of the deceased. Along with wife of the deceased, her son Banshrup had also come to the house of appellants. Ram Sagar had given blows with axe and their request to leave him was not considered by the appellants. This witness has stated that Ram Sagar was arrested from the place inside his house and the dead body of the deceased was taken out by the appellants. He has also stated that from the place of occurrence, police had recovered axe, sickle and knife. This witness has stated that Ram Sagar was arrested from the place inside his house and the dead body of the deceased was taken out by the appellants. He has also stated that from the place of occurrence, police had recovered axe, sickle and knife. Thus this statement of the witness gives rise to the conclusion that the subsequent alleged recovery on the pointing out of the appellants was farce. In cross-examination, this witness has admitted that by the time, he reached the place of occurrence, the murder had already been committed and the dead body was lying. He himself had not seen Pawan Kumar being murdered by any of the appellants present in court. He has given earlier statement as he was asked to state by Smt. Gyanmati. The statement of this witness in cross-examination also works as an additional blow to what has been stated by Smt. Gyanmati in her examination in chief. This witness was also declared hostile and was cross-examined by the prosecution. In his cross-examination, nothing material could be elicited to lend support to the prosecution. PW-10 Rashi Lal was a witness of the recovery memo of rope with which the deceased was tied and hanged and recovery of axe and clothes of Ram Sagar. This witness has proved the said recovery memos Ex. Ka-3, Ka-4 and Ka-5. However, he has expressed his ignorance about the persons, who has committed the murder of Pawan Kumar. But he has also stated that in his presence Ram Sagar had not told the police about the place where he has hidden the axe. So the evidence of this witness virtually goes against the prosecution. 14. After careful perusal of the entire prosecution evidence, we are of the considered view that none of the prosecution witness examined, in support of the case of the prosecution, can be termed to be wholly reliable. At different places, they are giving different statement. Even the wife of the deceased and son of the deceased have not supported the case of the prosecution. The origin of F.I.R. comes under shadow of doubt. PW-2 Jagat Narayan has stated that whatever he has stated in examination in chief was what he was asked by Gyanmati to say. At different places, they are giving different statement. Even the wife of the deceased and son of the deceased have not supported the case of the prosecution. The origin of F.I.R. comes under shadow of doubt. PW-2 Jagat Narayan has stated that whatever he has stated in examination in chief was what he was asked by Gyanmati to say. It has come in the evidence that deceased Pawan Kumar was a man of criminal antecedent and he himself indulged into quarrel with Ram Sagar and was going to fire at him. So the prosecution has not come with correct facts and has suppressed the genesis of this offence. The nature of evidence which is on record cannot be said to be wholly reliable, which persuade us to extend benefit of doubt to all the appellants in both the aforesaid criminal appeals. 15. In view of the discussion made above, both the aforesaid criminal appeals deserve to be allowed and are hereby allowed. The judgment and order dated 10.5.2011 passed by Special Judge (E.C. Act), Gonda in Sessions Trial No. 129 of 2000 is hereby set aside. The appellants are acquitted of the charges levelled against them. They be set at liberty. The appellants are in jail. They shall be released forthwith, if not wanted in any other case. 16. Office is directed to certify this order to the court concerned forthwith to ensure compliance and also to send back the lower court record. Appeal Allowed.