JUDGMENT : ANIL KUMAR SRIVASTAVA-II, J. 1. This appeal has arisen against a judgment and order dated 29.6.1991 passed by Ivth Additional Sessions Judge, Pratapgarh in Sessions Trial No. 8 of 1984, State v. Rajendra alias Munnu and Others, Police Station Sangramgarh, District Pratapgarh, whereby the learned trial court has convicted the appellants under section 147 and sentenced one year's rigorous imprisonment under section 304 Part-1 read with section 149 for rigorous imprisonment of seven years and fine of Rs.1500/- with a default stipulation of one month imprisonment. 2. Feeling aggrieved, appellants have preferred the appeal. 3. Pending appeal appellant Shyam Shankar, Vidya Shankar and Suresh Narain have died and their appeal stands abated. 4. According to the prosecution version, FIR was lodged by one Bhola Nath brother of deceased on 4.9.1983 at 03:40 PM. It is stated in written report that on 4.9.4983 at 01:00 PM, Shiv Shankar elder brother of the complainant Bhola Nath had gone to Nawabganj market and saw that family member of Jot Prasad are digging out the soil of the house which is under litigation with Jot Prasad. Shiv Shankar asked them not to dig the soil. Rajendra alias Munnu, Vidya Shankar and Shyam Shankar alias Nanhe started abusing Shiv Shankar. Suresh Narain, his son Umesh Chandra and brother Brijesh Narain also came there and exhorted Rajendra and others to kill Shiv Shankar. Rajendra and others attacked Shiv Shankar by lathi. On raising alarm Siddhanath, Ram Kishan, Krishna Kumar, Babulal came. Accused ran away from the scene. 5. After lodging the first information report, investigation was handed over to SI Pramod Kumar. First information report was lodged under section 147, 308, 504 IPC. Injured was medically examined on 4.9.1983 on 04:15 PM. Thereafter, the Investigating Officer recovered the plain and blood stained earth, blood stained clothes. Shiv Shankar succumbed to the injuries on 5.9.1983. Inquest proceedings were conducted. Postmortem was conducted on 5.9.1983 at 03:40 PM. Cause of death was shown as ante-mortem injuries. After investigation, the charge sheet was submitted against the accused. 6. Accused were charged for an offence punishable under Section 147, 304 read with section 149, 504 IPC, who denied charges and claimed trial. 7. Inquest proceedings were conducted. Postmortem was conducted on 5.9.1983 at 03:40 PM. Cause of death was shown as ante-mortem injuries. After investigation, the charge sheet was submitted against the accused. 6. Accused were charged for an offence punishable under Section 147, 304 read with section 149, 504 IPC, who denied charges and claimed trial. 7. In order to prove its case prosecution has produced PW-1 Bhola Nath Pandey, complainant eye witness, PW-2 Siddhanath, eye witness, PW-3 S.I. Santosh Kumar Shukla Investigating Officer, PW-4 SI Namvar Singh, Scribe of the FIR, PW-5 Dr. R.P. Gupta who has conducted the postmortem of the deceased on 5.9.1983 at 03:40 PM, PW-6 SI P.K. Srivastava Investigating Officer, PW-7 Dr. A.K.Srivastava who has conducted the medico legal examination of the injured and found following injuries on his body. (i) Lacerated wound 3 cm x 1 cm x 1 cm on skull right side 11 cm above from right ear (blood clot). (ii) Lacerated wound 1 cm x 0.5 cm x 1 cm on skull, 4 cm below from injury no.1 (blood clot). (iii) Lacerated wound 4 cm x 1 cm x 1 cm on skull, 6 cm below injury no.2 (blood clot). (iv) Lacerated wound 2 cm x 0.5 cm x 0.5 cm on skull, 5 cm below injury no.3 (blood clot). (v) Lacerated wound 2 cm x 1 cm x 0.5 cm on left forearm 10 cm below left elbow joint (blood clot). (vi) Contusion with swelling 37 cm x 11 cm on left leg 15 cm below left knee joint (reddish). (vii) Lacerated wound 2 cm x 1 cm x 0.5 cm. in the anterior side of right leg 12 cm from right knee joint (blood clot). (viii) Abrasion 2 cm x 0.5 cm on right elbow joint (blood clot). (ix) Contusion 21 cm x 3 cm on back, horizontally 22 cm below left shoulder joint. (x) Contusion 18 cm x 2 cm on back, 23 cm below left shoulder joint. (xi) Contusion 23 cm x 2 cm on back, 24 cm below left shoulder joint (reddish). (xii) Contusion reddish 12 cm x 2 cm on back, right side 17 cm below right shoulder joint. Bleeding was present there on nose and ear. X- ray was advised for injury no.1, 2, 3 and 6. (xi) Contusion 23 cm x 2 cm on back, 24 cm below left shoulder joint (reddish). (xii) Contusion reddish 12 cm x 2 cm on back, right side 17 cm below right shoulder joint. Bleeding was present there on nose and ear. X- ray was advised for injury no.1, 2, 3 and 6. All the injuries were fresh in nature which could have been caused by blunt weapon and were simple in nature and PW-8 Constable Kripa Shankar is Scribe of chick FIR and GD of registration of case. 8. Accused have denied the allegations in their statement under section 313 CrPC and filed documentary evidence in defence. 9. After appreciating the evidence on record learned trial court has convicted and sentenced the accused. 10. I have heard Shri Anil Kumar holding brief of Shri Anadi Banerji, learned counsel for the appellants, learned A.G.A. and perused the record. 11. Learned counsel for the appellants submits that the prosecution has failed to prove its case beyond reasonable doubt. It is submitted that the presence of complainant at the spot is highly doubtful. He was not present at the spot. It is further submitted that the place of occurrence could not be proved by the prosecution as there was no recovery of blood from the place of occurrence. No money was recovered from the deceased while it is stated that he was going to market. If it is so, then he must be carrying some money which was not recovered. It is further submitted that the conduct of the complainant is such that when the deceased was so badly injured even then he was not taken to the Primary Health Centre (In short 'PHC'), which was only about 100 steps from there, rather he was taken to the police station. Thereafter, when he was referred to the District Hospital, then he was taken there at 10:00 PM. It is further submitted that PW-2 Siddhanath is inimical to the accused and is in collusion with the complainant. His presence is also doubtful. It is further submitted that PW-2 has given the evidence on persuasion of Bhadra Kali with whom the accused have inimical relations. PW-2 Siddhanath is a chance witness. It is further submitted that the investigation was highly defective and the benefit of the same should be given to the accused. His presence is also doubtful. It is further submitted that PW-2 has given the evidence on persuasion of Bhadra Kali with whom the accused have inimical relations. PW-2 Siddhanath is a chance witness. It is further submitted that the investigation was highly defective and the benefit of the same should be given to the accused. It is further submitted that PW-1 Bhola Nath is real brother of the deceased who is a highly interested witness. His evidence cannot be relied upon. 12. Per contra, learned A.G.A. submits that the prosecution has successfully proved the case. Both the eyewitnesses have supported the prosecution version. They are wholly reliable witnesses. It is further submitted that mere relationship of PW-1 with the deceased could not be a ground to discard his evidence, rather no brother would implicate false person after leaving the actual assailants. 13. Two eye witnesses have been produced by the prosecution. P.W.1 Bholanath Pandey is the complainant as well as the real brother of the deceased, while P.W.2 Siddhanath is an eye witness, who has seen the incident. 14. Admittedly, P.W.1 Bholanath Pandey is the brother of the deceased, who has lodged the first information report just after about 2 Hrs. 40 minutes of the incident. Incident occurred at about 1.00 p.m. while the report was lodged at about 3.40 p.m. Distance of the police station from the place of occurrence is about 4 miles . Accused are named in the first information report. 15. A prompt F.I.R. lends credence to the prosecution case because a prompt F.I.R. eliminates all the chances of cooking up of a false story. Hon'ble the Apex Court in the case of Meharaj Singh v. State of U.P. reported in (1994) 5 SCC 188 while emphasizing the importance of recording a prompt FIR the Supreme Court observed as under :- "FIR in a criminal case and particularly in murder case is a vital and valuable piece of evidence for the purpose of appreciating evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstance in which the crime was committed, including the names of the actual weapons, if any, used, as also the names of the eye witnesses if any. Delay in lodging the FIR often result in embellishment, which is a creature of an afterthought. The object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstance in which the crime was committed, including the names of the actual weapons, if any, used, as also the names of the eye witnesses if any. Delay in lodging the FIR often result in embellishment, which is a creature of an afterthought. On the account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story." 16. In Thulia Kali v. State of Tamil Nadu reported in (1972) 3 SCC 393 the Supreme Court observed as under :- "............... first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused." 17. In Kishan Singh through LRs v. Gurpal Singh and others reported in (2010) 8 SCC 775 the Supreme Court held that "Prompt and early reporting of the occurrence by the informant with vivid details gives assurance regarding truth of its version. In case there is some delay in recording the FIR the complainant must give an explanation for the same. Undoubtedly, delay in lodging FIR does not make the complainant's case improbable when such delay is properly explained." 18. Hon'ble the Apex court in the case of Nanhe v. State of Uttar Pradesh reported in 1973 (3) SCC 317 has held that a prompt F.I.R. eliminates the chances of cooking up of a false story. 19. P.W.1 Bholanath Pandey has stated that he was accompanying his brother Shiv Shankar at the time of incident. When the incident took place, he immediately dictated the report to Raj Narain Pandey, who is his nephew. Raj Narain Pandey reached at the spot. He was not called by him. Thereafter the medico legal examination of the injured was done at PHC Sangramgarh. It was conducted by P.W.7, Dr. A.K. Srivastava on 4.9.1983 at about 4.15 p.m. Dr. Srivastava has stated that since nose and ear of the injured was bleeding, hence he referred the injured to the District Hospital, Pratapgarh. Injuries were fresh in nature. Cumulative effect of the injuries could cause death. It was conducted by P.W.7, Dr. A.K. Srivastava on 4.9.1983 at about 4.15 p.m. Dr. Srivastava has stated that since nose and ear of the injured was bleeding, hence he referred the injured to the District Hospital, Pratapgarh. Injuries were fresh in nature. Cumulative effect of the injuries could cause death. It is further stated by him that if the blood is clotted and some jerk is made, then again the injuries could bleed. Medico legal examination of the injured was conducted as a police case. All the injuries were found simple in nature. Injuries 1,2,3 and 6 were kept under observation and X-ray was advised. P.W.1 Bholanath Pandey has further stated that till the report is not written, injured remained at the spot. Although PHC Babaganj is about 100 steps and the PHC Sangramgarh is about 5-6 Miles from the place of occurrence, but the injured was taken to the PHC Sangramgargh. Thereafter he was referred to the District Hospital, Pratapgarh. 20. First information report was promptly lodged wherein all the facts were stated. P.W.1 Bholanath Pandey himself has gone to the police station to lodge the report. There was no delay in lodging the FIR. 21. Admittedly, P.W.1 Bholanath Pandey is the brother of the deceased. 22. It is submitted by the learned counsel for the appellants that being brother of the deceased, P.W.1 Bholanath Pandey is highly interested witness whose evidence could not be relied upon. It is further submitted that he has falsely implicated the accused due to enmity, hence his statement cannot be relied upon. 23. Evidentiary value of a close relative has been dealt with by Hon'ble Apex Court in various judgments. 24. Law is settled on the point that the evidence of a related witness cannot be discarded solely on this score. Hon'ble Apex Court in a recent judgment in the case of Kuria and another v. State of Rajasthan reported in (2012) 10 SCC 433 had held in paragraph no.34 as under :- "The testimony of an eyewitness, if found truthful, cannot be discarded merely because the eyewitness was a relative of the deceased. Hon'ble Apex Court in a recent judgment in the case of Kuria and another v. State of Rajasthan reported in (2012) 10 SCC 433 had held in paragraph no.34 as under :- "The testimony of an eyewitness, if found truthful, cannot be discarded merely because the eyewitness was a relative of the deceased. Where the witness is wholly unreliable, the court may discard the statement of such witness, but where the witness is wholly reliable or neither wholly reliable nor wholly unreliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the court may base its judgment on the statement of such witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of the witness is corroborated. Reference in this regard can be made to Sunil Kumar v. State of Punjab, (2003) 11 SCC 367, Brathi v. State of Punjab (1991) 1 SCC 519 and Algupandi v. State of T.N. (2012) 10 SCC 451 ." 25. In a recent judgment in the case of Gurjit Singh v. State of Haryana reported in (2015) 4 SCC 380 Hon'ble the Apex Court has observed that statement of a relative cannot be discarded on the ground that he is a relative. 25. Law is settled on the point that mere relation of the witness with the deceased is by itself no ground to discard his evidence. Reference may be made on the pronouncement of Hon'ble the Apex Court in the case of Sahabuddin & Anr. v. State of Assam passed in Criminal Appeal No. 629 of 2010. In this case Hon'ble the Apex Court has discussed the legal position on this point in paragraph no.16. Relevant portion of the aforesaid judgment reads as under :- "16. ............. At this stage, we may refer to the judgment of this Court in the case of Gajoo v. State of Uttarakhand [JT 2012 (9) SC 10], where the Court while referring to various previous judgments of this Court, held as under :- "We are not impressed with this argument. The appreciation of evidence of such related witnesses has been discussed by this Court in its various judgments. The appreciation of evidence of such related witnesses has been discussed by this Court in its various judgments. In the case of Dalip Singh v. State of Punjab [(1954) SCR 145], while rejecting the argument that witnesses who are close- relatives of the victim should not be relied upon, the Court held as under :- A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate and innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." Similar view was taken by this Court in the case of State of A.P. v. S. Rayappa and Others [ (2006) 4 SCC 512 ]. The Court observed that it is now almost a fashion that public is reluctant to appear and depose before the court especially in criminal cases and the cases for that reason itself are dragged for years and years. The Court also stated the principle that, "by now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. The Court also stated the principle that, "by now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons." This Court has also taken the view that related witness does not necessarily mean or is equivalent to an interested witness. A witness may be called interested only when he or she derives some benefit from the result litigation; in the decree in a civil case, or in seeing an accused person punished. {Ref. State of Uttar Pradesh v. Kishanpal and Others [ (2008)16 SCC 73 ]} In the case of Darya Singh & Ors v. State of Punjab [ AIR 1965 SC 328 ], the Court held as under :- 6 ................ On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars." 26. It will be useful to make a reference of another judgment of Hon'ble the Apex Court, in the case of Satbir Singh & Ors. v. State of Uttar pradesh reported in [ (2009) 13 SCC 790 ], wherein Hon'ble the Apex Court has held as under :- "26. It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon ......." 27. It is further held by the Hon'ble Apex court that a related witness would not falsely implicate an innocent person and will exculpate the real culprit only because he has some enmity with the accused. Related witness, that too a real brother, would not spare the real culprit and would not falsely implicate the innocent person. It is further held by the Hon'ble Apex court that a related witness would not falsely implicate an innocent person and will exculpate the real culprit only because he has some enmity with the accused. Related witness, that too a real brother, would not spare the real culprit and would not falsely implicate the innocent person. 28. In the light of the above legal background, now it is to be seen as to whether the evidence of P.W.1 Bholanath Pandey inspires confidence; whether it can be relied upon?. It is submitted that if the complainant would also have been accompanying the deceased, then the accused should have caused some injuries to the complainant also. Admittedly, the complainant has not received any injury. Accused were digging the soil from the disputed house. At that time, when the deceased asked them not to do it, then Rajendra, Vidhya Shankar and Shyam Shankar started abusing them. Thereafter accused Umesh Chandra, Suresh Narain and Birjesh Narain also reached and exhorted the other accused and then started beating Shiv Shankar, who ran away and reached near mango tree on the canal. Again he was beaten near mango tree where the deceased fell down. It was not necessary that the accused should also have caused injuries to the complainant, as he has not raised any objection against the action of the accused when they were digging the soil. He was accompanying the deceased, but at the same time, if he has not received any injury, it creates a doubt about his presence at the spot. 29. In the FIR, Siddhanath, Ram Krishna, Krishna Kumar and Babulal have been shown as the eye witnesses, who have intervened and made attempt to save the deceased. Out of them, Siddhanath has been produced by the prosecution as PW2. It is submitted that PW2 Siddhanath is an interested witness, who has also given evidence in favor of the complainant in other cases also. 30. P.W. 2 Siddhanath was an eye witness of the incident, although he is resident of another village. It is submitted that he is an interested witness. It is submitted that PW2 Siddhanath is an interested witness, who has also given evidence in favor of the complainant in other cases also. 30. P.W. 2 Siddhanath was an eye witness of the incident, although he is resident of another village. It is submitted that he is an interested witness. A copy of the sale-deed executed by Chand Mohammad in favour of complainant deceased Shiv Shankar and Gajadhar Prasad, Murli Prasad and Rajendra Prasad (who are real brothers dated 22.9.1980), a copy of the plaint of original Suit No. 310 of 1980, Brajesh Narain v. Chand Mohammad, court of Munsif Kunda, Pratapgarh and also a copy of the ex parte judgment dated 9.3.1981 are filed. P.W. 2 Shiddhanath is the witness in the sale-deed. The sale-deed was challenged and suit was decreed ex parte in favour of the accused. P.W. 2 Siddhanath was also a witness in Criminal Case No. 630 of 1981, Brajesh Chandra v. Algoo and others under sections 352, 379, 427, 504 and 506 IPC, decided on 24.8.1983 by Ist Additional Munsif Magistrate, Pratapgarh. In the said case, accused were convicted. 31. So far as the evidence of P.W. 2 Siddhanath is concerned, he has specifically stated that at the time of incident he was in the Babaganj market. He heard some noise from the southern side. Place of incident was about 100 steps from the place of market. He saw that accused Rajendra, Vijai Shankar and Shyam Shankar were abusing Shiv Shankar and Bhola. Shiv Shankar asked the accused not to dig the land till the case is disposed of. At that time, accused Brijesh Narain, Suresh Narain and Umesh Chandra came armed with lathi and exhorted Shiv Shankar to kill him. Shiv Shankar ran away towards north western side on canal bank. When he reached near the canal, all the accused attacked him by lathi and Shiv Shankar fell down. This witness has admitted that he was witness of the sale-deed in favour of the complainant. It is further admitted by him that after making purchase from the market, he went to his house. He did not help Bhola Nath to take Shiv Shankar to Hospital. 32. Conduct of PW2 Siddhanath itself raises a doubt about his presence at the spot. PW2 Siddhanath is an interested witness. It is further admitted by him that after making purchase from the market, he went to his house. He did not help Bhola Nath to take Shiv Shankar to Hospital. 32. Conduct of PW2 Siddhanath itself raises a doubt about his presence at the spot. PW2 Siddhanath is an interested witness. When he was so much connected with the complainant injured that he had already deposed in their favour in earlier cases, even then after the incident he left the place of occurrence. He did not make any attempt to help the complainant or to provide medical aid to the deceased Shiv Shankar. It is apparent from the site plan that the PHC Babaganj is just about 100 steps from the place of occurrence, but PW2 Siddhanath did not make any attempt to take the injured even to the PHC for providing first aid to him. Conduct of PW2 Siddhanath also shows that he was so much interested in the prosecution that he narrated all the facts in detail, but did not help the injured or the complainant or did not make any attempt to save the injured. Hence, the presence of PW2 Siddhanath at the place of occurrence is doubtful. 33. Now there remains sole testimony of PW1 Bholanath Pandey, who is the real brother of deceased. Age of PW1 Bholanath at the time of incident was about 16 years. He is the complainant. In the first information report his presence is not recorded. It is stated that on 04.09.1983, when Shiv Shankar went to Babaganj market at about 1.00 pm, then incident took place. Even in the later part of the FIR, it is stated that Siddhanath, Ram Krishna, Krishna Kumar and Babulal intervened and tried to save Shiv Shankar, but the presence of PW1 Bholanath Pandey complainant is nowhere mentioned. 34. It is settled legal position that the conviction can be recorded even on the basis of sole testimony of an eye witness. It is also settled legal position that statement of a close relative of the deceased or injured could not be discarded merely on this ground, but at the same time, it is also to be borne in mind that the evidence of the sole eye witness who is real brother of the deceased, is to be scrutinized with due care and caution. Moreso, he is not injured witness and he is interested witness. 35. Moreso, he is not injured witness and he is interested witness. 35. In this background, I have to examine the statement of PW1 Bholanath Pandey. 36. Admittedly, PHC is shown by number six in the site plan. PW1 Bholanath Pandey has admitted that the PHC is about 100 steps from the place of occurrence. According to the statement of PW7 Dr. A.K. Srivastava, who has conducted medico legal examination of injured Shiv Shankar on 4.9.1983 at about 4.15 pm. 12 injuries were found on his body. Some of the injuries were having clotted blood. In such situation, injured was not taken to PHC Babaganj rather the injured was taken to PHC Sangramgarh which was about 5-6 miles from the place of occurrence. PW1 Bholanath Pandey has admitted that Shiv Shankar was not treated at any other place except Sangramgarh. He remained at the place of occurrence till the other villagers did not arrive at the spot. It is also admitted that he has seen that blood was oozing from nose and head of Shiv Shankar, but even then no medical aid was given to him at PHC Babaganj. This is a strong circumstance against the prosecution version. Veracity of the statement and credibility of the witness could only be judged with the aid of the circumstances. Circumstances speak for themselves. When the injured was having so much injuries on his body and blood was oozing and the medical facilities, although they may not be of high standard, but even then first aid could have been provided at PHC Babaganj which was just about 100 steps away from the place of occurrence, were not provided to injured, why the injured was not taken away to PHC Babaganj? why the complainant PW1 Bholanath Pandey waited there and firstly lodged the FIR and then went to PHC Sangramgarh where the injured was medically examined at 4.15 pm. No explanation could have been given by the complainant PW1 Bholanath Pandey which creates a doubt about his presence at the spot. If he was present at the spot, then definitely he should have rushed towards PHC Babaganj for providing first aid to his brother. 37. Presence of PW1 Bholanath Pandey is not mentioned in the FIR. It is also admitted by him that in the statement of section 161 Cr.P.C., he did not tell investigating officer that he was also accompanying the deceased. 37. Presence of PW1 Bholanath Pandey is not mentioned in the FIR. It is also admitted by him that in the statement of section 161 Cr.P.C., he did not tell investigating officer that he was also accompanying the deceased. PW6 SI P.K. Srivastava has admitted that no such statement was given by the complainant. If the complainant was accompanying the deceased, then he should have mentioned this fact in the FIR as well as told the investigating officer. 38. In the FIR, it is mentioned that the family members of Jot Prasad were digging the soil from the disputed house and were taken away the soil to other place. Shiv Shankar asked them that till the disposal of the case, they cannot do it. Thereafter Rajendra alias Munnu, Vidya Shankar and Shyam Shankar alias Nanhe started abusing him. Suresh Narain, Umesh Chandra and Brijesh Narain also reached at the spot and exhorted Rajendra to kill him then Rajendra and others assaulted Shiv Shankar by lathi. PW1 Bholanath Pandey has admitted that only Rajendra, Shiv Shankar and Daya Shankar were digging the soil by sped, but their names are not mentioned in the report that they were digging the soil. A civil suit was decreed ex parte in favor of the accused on 09.03.1981. The suit was regarding the disputed house, but the witness gave evasive answer about the deceased's another case. Even the names of the persons digging the soil were not stated to the investigating officer. If the witness PW1 Bholanath Pandey was present at the spot then why the names were not correctly described in the FIR as well as stated to the investigating officer. It is the circumstance which is indicative of the fact that the witness P.W.1 Bholnath Pandey was not present at the spot. 39. Report was scribed by one Raj Narain Pandey who is nephew of the complainant. Report was lodged at the police station at 3.40 p.m. while the distance of the police station was about 4 miles. During this period, the injured remained there at the spot. In GD No. 22, it is mentioned that the complainant along with his brother reached at the police station and lodged the report. Thereafter medico legal examination was conducted at PHC Sangramgarh. During this period, the injured remained there at the spot. In GD No. 22, it is mentioned that the complainant along with his brother reached at the police station and lodged the report. Thereafter medico legal examination was conducted at PHC Sangramgarh. According to GD, chitthi majrubi was given to Constable 375 Bindeshwari Prasad Dubey, but medico legal examination report shows that the medico legal examination was not conducted on the chitthi majrubi. P.W.7 Dr. A.K.Srivastava has stated that the injured was brought by the Constable 375 Bindeshwari Prasad Dubey, but the report was not prepared on chitthi majrubi. P.W.7 Dr. A.K.Srivastava has further stated that he referred the injured to the District Hospital. P.W.1 Bholanath Pandey stated that he left the PHC at 10.00 P.M and reached the District Hospital at about 12.00 or 12.30 in the night where the Doctor declared him dead. When the condition of the injured was so precarious and critical then why the complainant kept on waiting at the PHC itself for six hours when injured has already been referred to the District Hospital?. There was no explanation for the same. 40. It is stated that Shiv Shankar has gone to the market for purchasing. He was keeping some cash with him, but in the inquest proceedings no cash was recovered from his possession. Further P.W.1 Bholanath Pandey has stated that on the date of incident it was a village market day wherein thousands of people used to come to market, but none of them have been produced as witness. Presence of PW2 Siddhanath is doubtful and could not be established by the prosecution. There were other witnesses, who are named in the FIR have not been produced. Presence of P.W.1 Bholanath Pandey at the spot is also doubtful. 41. A motive has been alleged by the prosecution that the family members of Jot Prasad were digging the soil from the house which was in dispute. Civil suit was ex parte decreed in favour of the accused. Accused have filed 28 papers in their defence before the learned trial court which were not even considered and discussed by the learned trial court. These documents are the judgments passed in Regular Suit No. 1935 of 1955 by Munsif Kunda Pratapgarh, Rajaram and others v. Gramsamaj on 01.05. Civil suit was ex parte decreed in favour of the accused. Accused have filed 28 papers in their defence before the learned trial court which were not even considered and discussed by the learned trial court. These documents are the judgments passed in Regular Suit No. 1935 of 1955 by Munsif Kunda Pratapgarh, Rajaram and others v. Gramsamaj on 01.05. 1974, Judgment of Civil Appeal No. 236 of 1958 dated 24.2.1960, Judgment of the Second Appeal and other documents showing the enmity between the parties as well as claim of accused over the property in suit. Admittedly there is enmity between the parties. Enmity is double aged weapon which can be used by the either side for false implication as well as for commission of the offence. Enmity is to be looked into along with evidence of the witnesses. When the presence of the witnesses at the spot is doubtful, then it cannot be accepted that the prosecution has successfully proved the case against the accused. 42. On the basis of the discussions made above, I am of the view that the learned trial court has misled in appreciating the evidence on record and recording the finding of conviction. Prosecution has failed to prove the charge against the accused beyond reasonable doubt. 43. Accordingly the appeal is liable to be allowed. Judgment and order dated 29.6.1991 passed by the IVth Additional Sessions Judge, Pratapgarh in Sessions Trial No. 8 of 1984, State v. Rajendra alias Munnu and Others is liable to be set aside. 44. Appeal is allowed. Judgment and order dated 29.6.1991 passed by IVth Additional Sessions Judge, Pratapgarh in Sessions Trial No. 8 of 1984, State v. Rajendra alias Munnu and others is set aside. Accused appellants Rajendra alias Munnu, Brijesh Narain and Umesh Chandra are acquitted for the offence punishable under sections 147 and 304 Part-1/149 IPC. They are on bail. They need not surrendered. Their bail bonds are cancelled. Sureties are discharged. 45. Let the judgment be certified to the Lower Court for compliance. 46. Office is further directed to transmit the lower court's record to Lower Court forthwith. 47. Compliance report be submitted within four weeks.