ORDER : Dinesh Kumar Singh-I, J. 1. Sri Om Prakash Tripathi, learned counsel for the appellants an Sri S.S. Sachan, learned A.G.A. for the State are present. 2. This criminal appeal has been preferred by three appellants namely, Ansuiya, Phool Chandra and Bhura against judgment and order dated 21.7.1983 passed by Sessions Judge, Banda in S.T. No. 491 of 1980, whereby all the three appellants have been convicted under Section 304 Part-I IPC read with Section 34 IPC, co-accused Jaipal, against him proceedings were abated on 23.4.1982 because of his death during trial and they were sentenced to undergo five years rigorous imprisonment each. 3. During the pendency of appeal, appellant No. 1 Ansuiya, also died and his appeal has been abated by this Court's order dated 22.11.2019, therefore appeal of only two appellants namely, Phool Chandra and Bhura remains for consideration of this Court. 4. As per F.I.R., the prosecution version is that informant, Ram Milan, who was resident of Parsauli under the jurisdiction of P.S. Vaveru, was living in his Nanihal in village Chausad as his maternal grandmother (nani) did not have any child. Because of this reason she had given her land to father of the informant namely, Chunvad. Father of the informant and his uncle Kripal had also come to Chausad and had settled down there. The maternal grandmother of the informant namely, Ramkumari had recorded her entire land in the name of uncle of the informant namely, Kripal, since then informant's cousin Mama-Ansuiya and Jaypal became inimical towards informant thinking that if his uncle and father had not settled down there, the said land would have gone to them. The maternal grandmother of the informant namely, Ramkumari had recorded her entire land in the name of uncle of the informant namely, Kripal, since then informant's cousin Mama-Ansuiya and Jaypal became inimical towards informant thinking that if his uncle and father had not settled down there, the said land would have gone to them. Because of this animosity, on 20.8.1980, father of the informant, namely Chunvad, informant himself and his uncle, who were going with their cattle and had gone to Har Dand in afternoon and were returning from there at about 1:00 pm, and when they reached sector road, near 'Gode' of the village, his uncle Ansuiya (accused-appellant No. 1), Jaypal (accused) and their sons Phool Chandra (accused-appellant No. 2) and Bhura (accused-appellant No. 3), all armed with Lathis, gheraoed informant's father with common intention and exhorted that "maron sale ko hanth pair tod do na yaha ata to Ram Kumari Jameen Hamein Likhti" (let his hands and feet be broken as had he not come to their village, Ram Kumari would have written her land to them), saying so they all started assaulting informant's father, at which informant and his uncle pleaded them not to beat his father but they did not listen and continued to beat him and when the informant and his uncle challenged them, accused fled from there giving threat that if they dared to lodge report, they would not be left alive and proceeded towards village. The informant's father had fallen down after getting injured, who was carried in a bullock cart and went there to lodge report but he died when he reached near 'Gadav'. 5. In written report (Ext. Ka-1) of the informant-Ram Milan, case crime No. 491 of 1980, was registered at P.S. Bisanda, District-Banda, under Section 304/34 IPC on 20.8.1980 at 7:15 pm against Ansuiya, Jaypal, Phool Chandra and Bhura. Entry of this case was made in G.D. at report No. 20, time 9:15 hours on the said date, which is Ext. Ka-2. Panchayatnama of the deceased is Ext. Ka-3. Post-mortem report is also marked as Ext. Ka-2. Site plan is Ext. Ka-8. Thereafter investigation was assigned to S.I., Balbir Singh Rathore, who had submitted charge sheet after having investigated the case under the above mentioned sections, which is Ext. C-9. 6. Ka-2. Panchayatnama of the deceased is Ext. Ka-3. Post-mortem report is also marked as Ext. Ka-2. Site plan is Ext. Ka-8. Thereafter investigation was assigned to S.I., Balbir Singh Rathore, who had submitted charge sheet after having investigated the case under the above mentioned sections, which is Ext. C-9. 6. Charge was framed against the accused appellants on 26.11.1980 to which the accused-appellants along with other co-accused pleaded not guilty and claimed to be tried. 7. In order to prove the case of the prosecution, Kripal as P.W. 1, Ram Milan as P.W. 2 and Dr. D.S. Rana as C.W. 1 and S.I. Balbir Singh Rathore as C.W. 2 have been examined. 8. Thereafter the evidence of the prosecution was closed and the statements of the accused were recorded under Section 313 Cr.P.C. 9. Accused-appellant No. 2, Phool Chandra, has denied the truthfulness of the evidence which has come on record and has stated that he had no knowledge about the execution of the sale deed. Kripal used to live in Parsauli and not in his village Chausad nor did he cultivate land of Chunvad (deceased) nor did he do cultivation work at Chausad. Chunvad has died but he does not know as to who had killed him and where was he killed. He has further stated that Bhoori was cousin sister of his father and whenever she came to the village, she used to stay at his house and used to ask for her share from Chunvad. The informant side did not keep her with them and because of this animosity, he has been falsely implicated. 10. The appellant No. 3, Bhura, has also denied the truthfulness of the statements recorded against him and has stated that evidence which has come on record against him is false. It is true that both the families were living separately. He has also pleaded no knowledge about the execution of the sale deed and has denied about Kripal staying in the village and doing cultivation work, rather has stated that he used to live in Parsada and used to cultivate land there only. It is wrong to say that he had killed Chunvad. He also showed ignorance as to how and where he died. He has further stated that Bhoori used to come in the village and used to live with him. It is wrong to say that he had killed Chunvad. He also showed ignorance as to how and where he died. He has further stated that Bhoori used to come in the village and used to live with him. He used to ask for her share because of which complainant side was harbouring animosity and they have falsely implicated him. 11. On the basis of evidence which has come on record the trial court after having heard both the sides has convicted the accused-appellants and awarded above mentioned punishment. The said judgment is assailed before this Court in appeal. 12. Learned counsel for the appellants has argued that there was not sufficient evidence on record against the appellants and yet they have been held guilty by the trial court erroneously by making erroneous interpretation of the evidence on record. 13. Learned counsel for the applicant has also given a family tree of the accused and the complainant side which is as follows:- Tirra Suraj Rajaram Ansuiya Jaipal Smt. Ramkumar (widow) Phoolchandra Bhoora Smt. Bhoori Smt. Sukhdaiya (Sasural Parsauali Chunvad husband died Kripal (devar) Ram milan PW-1 14. It is further argued by the learned counsel for the appellants that there could be motive to kill Kripal because he was the person in whose name land was written by Ramkumari and not to kill Chunvad. P.W. 1 (Kripal) lives in Parsauli, while occurrence has taken place in village Chausad, where he did not live. His land was also in Chausad. Ramkumari had also gone to Parsauli as the transaction with respect to land took place in Parsauli only. No independent witness is there of the occurrence and P.W. 2 has also given statement in accordance with the statement given by P.W. 1. There are contradictions in the statements as well as in the F.I.R., therefore this appeal deserves to be allowed. 15. From the side of learned A.G.A., it was vehemently argued that there is no infirmity in the impugned judgment, the same is well reasoned judgment, which has been passed in accordance with the evidence on record and the same deserves to be upheld. 16. This Court has to appreciate the evidence on record before coming to the conclusion as to whether the judgment deserves to be set aside or needs to be upheld. 17. 16. This Court has to appreciate the evidence on record before coming to the conclusion as to whether the judgment deserves to be set aside or needs to be upheld. 17. P.W. 1, Kripal, has stated in examination-in-chief that deceased-Chunvad was his real brother and Ram Milan, who is informant of this case, is son of the deceased-Chunvad and nephew of P.W. 1. Both the brothers i.e. P.W. 1 and the deceased-Chunvad were living jointly. The marriage of Chunvad was performed in village Chausad, which was at a distance of 6 Kos' from his village-Parsauli towards South. The name of father-in-law of the Chunvad was Suraj. Raja Ram was real brother of Suraj. P.W. 1 knew accused Ansuiya (accused-appellant No. 1), Bhura (accused-appellant No. 3) and Phool Chandra (accused-appellant No. 2) for last 25 years, who were present in court. The deceased was real brother of the accused Jaypal and accused Ansuiya. The accused-appellant No. 2, Phool Chandra, was son of accused Ansuiya and accused-appellant No. 3, Bhura, was son of the accused Jaipal. All these accused are residents of village Chausad. Accused-appellant No. 1, Ansuiya, is grand daughter of Suraj. Rajaram and Suraj, both had died before he started retaining memory. The late Ram Kumari was wife of Suraj and was mother-in-law of his brother Chunvad. Agricultural land of the accused and Suraj was joint land but they used to cultivate it separately. During consolidation proceedings, their land had been segregated as per their share. Further this witness has stated that he was living in Parsauli but his brother deceased-Chunvad had started living in his sasural. There was no son of Raja Ram and Suraj nor Raja Ram had any daughter, although, Suraj had two daughters. Raj Ram and Suraj, both have died. The widow of Suraj, namely Ramkumari had given her entire land to his brother Chunvad (deceased). Chunvad along with his children had started living in his Sasural in the house of Smt. Ramkumari. Since 30-35 years prior to his murder, he was not living in his sasural. About 6 years ago, Smt. Ramkumari had executed a sale deed of her land in the name of P.W. 1 and since thereafter P.W. 1 also went to live in the said village although his children continued to stay at Parsauli. After execution of sale deed, he had taken possession of the said land. About 6 years ago, Smt. Ramkumari had executed a sale deed of her land in the name of P.W. 1 and since thereafter P.W. 1 also went to live in the said village although his children continued to stay at Parsauli. After execution of sale deed, he had taken possession of the said land. He and his brother (deceased) were earning their livelihood jointly and living together. About two years ago, at about 1:00 pm, when he along with Ram Milan and deceased were returning home from 'Har', Chunvad (deceased) was having bullocks, as on the said date the fields were ploughed and Chunvad was coming from the sector road with bullocks, while P.W. 1 and Ram Milan were coming through 'Pagdandi', right then when his brother was about 20-25 paces away from Abadi, towards north of the pond, accused-appellant No. 1, Ansuiya, accused-Jaypal (dead), accused-appellant No. 2, Phool Chandra and accused-appellant No. 3, Bhura, came there armed with Lathis; Ansuiya exhorted that hands and feet of the deceased be broken so that he would flee leaving behind the land, at this Ansuiya, Jaypal, Phool Chandra and Bhura, all started beating Chunvad with lathis by which he fell down without crying. P.W. 1 and Ram Milan, both dashed towards him and reached there and both of them were also armed with Lathis. As soon as P.W. 1 and Ram Milan reached there with Lathis, all the four accused gave threat that if they lodge report, they would also be killed. Lot of villagers later on reached there. After fleeing away of accused, P.W. 1 saw Chunvad, till then he was alive but his head was broken which was bleeding profusely. After arranging bullock cart, Chunvad was placed in that and they started towards P.S. Bisanda and on way after having travelled about 3 and 1/2 'Kos' towards west from Chausad and about 2 and 1/2 'Kos' towards east of Bisanda, near village Gadhao, Chunvad died, thereafter they reached P.S. Bisanda at about 4:00 pm along with dead body. At that time, his report was not lodged. The dead body kept lying outside the P.S., thereafter one constable gave a blank paper to Ram Milan stating 'sale jo likhna chaho likho', then Ram Milan had written report in the evening at 7:00 pm and gave it to the constable, copy of which was not provided to him. At that time, his report was not lodged. The dead body kept lying outside the P.S., thereafter one constable gave a blank paper to Ram Milan stating 'sale jo likhna chaho likho', then Ram Milan had written report in the evening at 7:00 pm and gave it to the constable, copy of which was not provided to him. Next day in the morning, panchayatnama of the deceased was conducted (witness was giving statement weeping, as he had with him his nieces, who were starving and went towards village Parsauli, leaving Chausad village then and there. P.W. 1, his Bhaujai, Ram Milan and three daughters meaning thereby whole family of the deceased Chunvad and P.W. 1 had accompanied Chunvad. At the P.S., Ram Milan and wife of the deceased and mother of Ram Milan were left behind, while P.W. 1 along with nieces had returned to Parsauli. 18. In cross-examination, this witness has stated that he has come from jail. Accused Jaypal, whether he fled or had been killed, he does not know but even thereafter P.W. 1 continued to come to Kutchehary. He has been falsely implicated in the said case. He was caught by police in this very month on the first date and was sent to jail. Further he has stated that he does not know that the name of father of Ansuiya was Tirra and that Kedar and Vishal were real uncles of Ansuiya but they all belonged to the same clan but he could not tell the family tree and refused the suggestion that he was concealing the family deliberately. To a question put to him, as to whether I.O. had taken his statement, he responded that he did not do anything except abusing him. Further it was put to him as to whether I.O. had put any question to him pertaining to murder of Chunvad to which he responded that no question was asked. When he was again put a question as to whether the I.O. had recorded statement on his own, he kept silent for sometime and thereafter said that he may have recorded his statement arbitrarily on his own as he had not put any question with respect to the occurrence. It is further stated by this witness that prior to recording of statement before court, no evidence was taken from him. It is further stated by this witness that prior to recording of statement before court, no evidence was taken from him. Further this witness has stated that Ramkumari was mother-in-law of the deceased-Chunvad, who had predeceased the mother of Chunvad. The name of the other daughter of Ramkumari is Bhoori, whom she had not given her land. When Ansuiya and Bhoori had thrown Ramkumari out of her house, this occurrence took place about 5-6 years ago and then Ramkumari had started living with P.W. 1 in Parsauli as no care was taken of her by Bhoori nor by Sukhdaiya (wife of Chunvad). Ramkumari was very old, who was being looked after by P.W. 1 Kripal, and because he was serving her, she offered that her land should be got written in his name. Further this witness has stated that the land was not partitioned but possession thereon was that of Chunvad and both the brothers were jointly cultivating the land. On the basis of sale deed executed by Ramkumari, name of P.W. 1 was mutated in tehsil. He does not know what happened in the consolidation proceedings. Bhoori had raised objections but he does not know what happened on that. The revenue dues are still being paid on the said land in the name of Ramkumari, receipt of which is taken by Ram Milan. Accused had not opposed the mutation of the said land, however, when P.W. 1 had sought permission at the time of sale deed, objection was raised by the accused but when permission had been granted then only execution of sale deed was done. The application was given before Naib of Consolidation and at that time, Ramkumari was alive as she had died one year after the execution of sale deed. He does not have knowledge of the fact that on the land of Ramkumari, name of Bhoori and Sukhdaiya, both have been mutated. Bhoori was also claiming half portion of the said land. Whenever Bhoori used to come, she used to stay with Ansuiya as she was on cordial terms with his mother and sister. He does not know whether Bhoori had got a panchayat convened in respect of as to whether she should get any share in the land of Ramkumari. Bhoori was also claiming half portion of the said land. Whenever Bhoori used to come, she used to stay with Ansuiya as she was on cordial terms with his mother and sister. He does not know whether Bhoori had got a panchayat convened in respect of as to whether she should get any share in the land of Ramkumari. He does not have knowledge as to since when the accused and Ramkumari were living separate but since the retention of memory, he had seen them living separate. The land of Smt. Ramkumari was being looked after by deceased Chunvad for last 30 years. About 5 years prior to the murder of Chunvad, Bhoori had started raising objections and protest. Bhoori used to be carried by Ansuiya etc. and she also used to be accompanied by her family members such as husband and brothers etc. as she was demanding half share of the land. Accused-appellant No. 1, Ansuiya, was interested in prompting Bhoori to claim her share and later on to sell her share in his favour. He has further stated that on the land of Ramkumari to the extent of 15 bigha 14 bishwas, there is possession of P.W. 1 on the said land. Seven Bigha and seven bishwas of land was got written by accused-appellant No. 1, Ansuiya, from Ramkumari and not from Bhoori, thus accused-appellant No. 1, Ansuiya, also had possession. Ramkumari had initially executed sale deed of seven bighas and seven bishwas of land in favour of appellant No. 1, Ansuiya, and thereafter rest of the land i.e. fifteen bigha and fourteen biswas, sale deed of it was executed in favour of P.W. 1. In favour of appellant No. 1, Ansuiya, Ramkumari would have executed sale deed about 20 years ago. Initially all in all was appellant No. 1, Ansuiya, only but Ramkumari had executed sale deed of remaining land in favour of P.W. 1, thereafter appellant No. 1, Ansuiya became angry and thereafter after making Bhoori stand before Chakbandi Authority. Ansuiya wanted that Ramkumari, during Chakbandi proceedings, should give statement in his favour but Ramkumari refused to do so then Bhoori was prompted to interject and then only a quarrel started. He further stated that about 8 to 10 years ago, consolidation proceedings were held. Ansuiya wanted that Ramkumari, during Chakbandi proceedings, should give statement in his favour but Ramkumari refused to do so then Bhoori was prompted to interject and then only a quarrel started. He further stated that about 8 to 10 years ago, consolidation proceedings were held. Further it is stated that Smt. Ramkumari had executed sale deed in favour of P.W. 1, Kripal, only after being harassed from the side of Bhoori, Chunvad and Ansuiya. The children of Chunvad were surviving on the said land. Then court put a question to him, to which he responded that Chunvad was annoyed with P.W. 1. When the sale deed of the said land was executed in favour of P.W. 1. Ansuiya wanted that the said land should neither go to the P.W. 1 nor to Bhoori, rather he wanted that the said land should remain barren. He has denied the suggestion that sale deed was got executed by him so that legal heirship of the said land of Bhoori would stand closed, rather has further stated on his own that old lady/Ramkumari was not being fed by them nor were they taking her care and when P.W. 1, Kripal, started taking care of her, then the said land was given to him. At the time of execution of sale deed, Chunvad had not accompanied him. He had not made any consultation with Chunvad prior to execution of sale deed. Then he again stated on his own that he used to consult deceased-Chunvad as everything belonged to Chunvad and he only would use the said land. It is further stated by this witness that Ramkumari was not giving entire consideration money at the time of sale deed, rather was giving only the expenditure, which was incurred, in writing work. 19. He has further stated that at the time of occurrence, both of them had gone to plough their land separately. Initially, deceased-Chunvad had gone along with Lathi. Deceased-Chunvad had gone in the morning at about 7:00 am, while 'Jan' (servant) had gone earlier along with plough and bullock. P.W. 1, Kripal, and his nephew Ram Milan (informant) had not gone to the said field as both of them were grazing cattle. The place where cattle were grazing, place of occurrence would have been 400 paces away towards north, where there were few children of scheduled caste such as Jaikaran. P.W. 1, Kripal, and his nephew Ram Milan (informant) had not gone to the said field as both of them were grazing cattle. The place where cattle were grazing, place of occurrence would have been 400 paces away towards north, where there were few children of scheduled caste such as Jaikaran. The house in Chausad, in which, he lives, has seven rooms and in the same house Ansuiya also lives. From the said house, five years prior to the murder of Chunvad, P.W. 1, Kripal, his Bhabhi and Ramkumari were thrown out by Ansuiya forcibly, where after Ramkumari went to Parsauli, while Bhabhi and Chunvad started living in the adjacent place, separate from Ansuiya. No written report was made at the P.S. about expulsion from the said house nor any panchayat was held. Kedar and Vishal, who happened to be uncle of the Ansuiya, also did not say anything on this occurrence. Further this witness has stated that Gahilwa Talab (pond) is situated about 100 paces towards west of the village Abadi and the said pond is in the north of the village, which is named as Ghaughata (pond). He has denied the suggestion that all three of them had taken the cattle to 'Har' and were returning from there through sector road, if the same is written by I.O. then the same was wrong. The place where this occurrence had happened, the same was 200 paces towards south from Mahant Ka Dera and near that place, there were fields of barley (dhan). At the time of occurrence, his brother was armed with Lathi, P.W. 1 had also taken lathi alongwith Ram Milan, who also had a lathi. At the time of occurrence, no screen/cover was taken by him but the place from where the accused were coming to the place of occurrence, there were bushes. The accused were coming from the side of village towards sector road towards south. To the south of the place of occurrence, there was a 'nala', where his brother was killed and from there, the said 'nala' was at a distance of six hands away. The accused were coming from the side of village towards sector road towards south. To the south of the place of occurrence, there was a 'nala', where his brother was killed and from there, the said 'nala' was at a distance of six hands away. Accused had come through 'nala', till then no flood had come and when the accused had reached there near the deceased, they had challenged and the said challenge was heard by P.W. 1 and hearing the same, he and his nephew Ram Milan dashed in that direction but his brother Chunvad could not run from there. The accused had beaten him hitting two to four 'lathis' and being alone, the deceased was trying to save himself but he was killed by them en-circling him. By the time, P.W. 1 reached there, deceased Chunvad had fallen down and was lying on side. P.W. 1 had chased the accused but had raised no alarm. Deceased-Chunvad was taken in the same condition home, where he was administered milk and alum (Phitkaree). The whole villagers had assembled there. One hour after the occurrence, P.W. 1, Kripal, and other villagers had become ready to go towards P.S., where they reached within one hour. He has denied that report was written after consultation. 20. From the statement of this witness, it is clear that he has given details of the family tree, which makes it clear that Tirra, Suraj and Raja Ram were three brothers and Tirra had four children, who are accused in the present case namely, accused-appellant No. 1, Ansuiya, accused-Jaypal (died), accused-appellant No. 2, Phool chandra and accused-appellant No. 3, Bhura. Suraj's widow is Ramkumari and out of the said wedlock, were born Smt. Bhoori and Smt. Sukhdaiya. Sukhdaiya had matrimonial home in Parsauli. Husband of Sukhdaiya is deceased Chunvad and the son of Chunvad is Ram Milan (P.W. 2) and P.W. 1, Kripal, is brother of Chunvad, who is dewar of Sukhdaiya. 21. Ram Milan (informant), who is son of the deceased, has been examined as P.W. 2, who has stated in examination-in-chief that P.W. 1, Kripal is his real uncle, who remained confined in jail for one month and thereafter he came to Kutchehary to give his statement in this case. 21. Ram Milan (informant), who is son of the deceased, has been examined as P.W. 2, who has stated in examination-in-chief that P.W. 1, Kripal is his real uncle, who remained confined in jail for one month and thereafter he came to Kutchehary to give his statement in this case. He knows accused appellant No. 1 Ansuiya, accused-appellant No. 2 Phool Chandra, accused-appellant No. 3 Bhura and accused-Jaypal (died) since childhood, who are residents of his Nanihal in village Chausad. He also used to live in his Nanihal. Out of the accused named above, accused Jaypal had died, while rest of the three were alive. This occurrence took place about two years and 2-3 months ago and on the said date, he was living in his Nanihal and his uncle Kripal (P.W. 1) was also living there. At about 1:00 pm, when he was grazing cattle in Dand 'Har', his uncle-P.W. 1 Kripal, was also there. Both of them were grazing cattle. His father deceased-Chunvad was going from sector road along with bullocks to his home in village Chausad. When he reached near the pond to the north of village Abadi, to the north of which is sector road, accused appellant No. 1 Ansuiya, accused-Jaypal (died), accused-appellant No. 2 Phool Chandra and accused-appellant No. 3 Bhura, started assaulting by by Lathis and at that time, P.W. 2 and P.W. 1 were going home after having food. When they saw his father being beaten, both of them dashed towards him and challenged the accused, where after accused fled from there giving threats that in case they lodge report, their hands and feet would be broken. At that time, lot of ladies and the children of the village had assembled there. When P.W. 2 and his uncle (P.W. 1) came near his father, they found him in injured and unconscious condition, who was bleeding profusely and they made arrangement for bullock-cart and thereafter proceeded towards Police Station but before reaching there, near village Gadhav, his father died. His uncle, mother and sisters and village Chaukidar had gone to the Police Station. He himself did not lodge any report nor did he get any copy of the same but he remained at the P.S. but his uncle went away from there to the village Parsauli along with daughters, Ext. Ka-1 is the same report which was in his hand writing and signature. 22. He himself did not lodge any report nor did he get any copy of the same but he remained at the P.S. but his uncle went away from there to the village Parsauli along with daughters, Ext. Ka-1 is the same report which was in his hand writing and signature. 22. In cross-examination, this witness has stated that his mother were two sisters. His mother's name was Sukhdaiya, while his Mausi's name was Bhoori. He has written in the report that his 'Nani' did not have any child meaning thereby she did not have any son but he had not given any such statement to the investigating officer. Leaving apart her mother, there was no issue of 'Nani' but if the same has been recorded, he could not tell its reason. Bhoori has half share and is in possession of the same and even that field is in possession of P.W. 2, Ram Milan, as he cultivates the same because never ever its possession was demanded and she also used to come to his house. He was having good term with Bhoori since the time when Bhoori was alive and she had never demanded her share. 'Nani' had executed sale deed in favour of his uncle (P.W. 1) but he does not know whether he had given any application for mutation of the same but he also does not know that his Mausi-Bhoori had raised any objection in the mutation proceedings or not. His 'Nani' remained in village Parsauli for two years. She was very fond of his uncle Ram Kripal (P.W. 1). At the time of execution of sale deed, Nani was in village Parsauli and from there only had gone with his uncle, when she had executed sale deed. At the time of said sale deed, his father had also accompanied his uncle. His father had not been given any property by his 'Nani'. After sale deed, uncle started living in Chausad and he also started living with him. No property was given by his 'Nani' to his father. At the time of said sale deed, his father had also accompanied his uncle. His father had not been given any property by his 'Nani'. After sale deed, uncle started living in Chausad and he also started living with him. No property was given by his 'Nani' to his father. In F.I.R., it is mentioned by him that the property of 'Nani' was given to his father by which he meant that when his father had gone to Chausad, at that time his 'Nani' had given him full property and about this, he has also stated before the I.O. His father was living in Chausad since prior to his birth. Bhoori would not go to the house of accused-appellant No. 1 Ansuiya, rather she used to come to his house. He has denied that accused-appellant No. 1 Ansuiya used to tell his father consistently that he should take half portion of the land and half should be given to Bhoori and has denied the question that because of this only accused-appellant No. 1 Ansuiya started having annoyance towards him, is wrong. He has also responded to the question in negative that in order to grab the share of Bhoori, P.W. 1 had got a forged sale deed executed. He also showed ignorance that on account of objection raised by Bhoori against mutation application, his application had been rejected. Further to the question that he was not giving possession of land to Bhoori and used to sow her crop and would reap the same on his own, to which he stated that entire cultivation work was being done by him only. He had admitted that six years after the death of Ramkumari, his father had died. Further to the question that Bhoori was married by his parents, he gave answer that she was married by the entire village. Further this witness has stated that the courtyard of the house in which accused-appellant No. 1 Ansuiya and he lived, was common. On the date of occurrence, his father had gone to 'Har' (field) at about 8:00 am after having taken breakfast and at that time he has taken with him a 'Lathi'. 'Jan' (servant) had also gone with bullocks at about 7:00 am. His uncle and he himself, had started with cattle at 7:00 am, at that time his father was left at home. 'Jan' (servant) had also gone with bullocks at about 7:00 am. His uncle and he himself, had started with cattle at 7:00 am, at that time his father was left at home. Thereafter, he had seen his father at 8:00 am, when he was going to his field and then thereafter in the afternoon, when he was being beaten. Prior to that, when he was retuning from 'Har', he had seen him from a distance of 100 paces from the place of occurrence. At that time, he was grazing cattle in the 'Har' and from there only, he was going home for having food. At the time of occurrence, the said field from where his father was returning, was about 350 paces towards East but he does not remember its number. The said field was in the name of his father, sale deed of which he had got executed from one Heeralal Singh Thakur. It is not mentioned in the F.I.R. that his father was returning with bullocks, rather it is written that he was returning from 'Har'. Why the I.O. has not written that, he could not tell its reason. He had shown the place of occurrence to the I.O. He and his uncle were not coming with his father nor any such statement was made by him to I.O. and thereafter he stated that he does not recollect that he had stated about it to the I.O. or not. The site plan was not prepared by the I.O. in his presence. Again he has stated that he has not shown the place of occurrence to the I.O. After the occurrence, he had gone for post-mortem in village Chausad but he could not meet the I.O. The place where his father was killed would have been 200 paces towards East of Auran-Atarra road. The said field was to the East of the said road at a distance of about 175 paces. The road of eastern 'Har' is called as Dand Har. The Mahant Ka Dera is situated about 40-50 paces towards East-North of the occurrence, which lies in Dera Majhihari 'Har'. On the date of occurrence, his cattle were also there at a distance of about 150-200 paces from the place of occurrence and from the sector road, they would have been about 150 paces away towards West. The Mahant Ka Dera is situated about 40-50 paces towards East-North of the occurrence, which lies in Dera Majhihari 'Har'. On the date of occurrence, his cattle were also there at a distance of about 150-200 paces from the place of occurrence and from the sector road, they would have been about 150 paces away towards West. The people, who were grazing cattle there, included Jaikaran and another's name was Badlu Arakh. None of the villagers had reached the place where father of the P.W. 2 was being assaulted although his uncle and he himself had reached there raising alarm. At that time, few women were drawing water from the well and no male member. All the four accused had reached the place of occurrence simultaneously and when they started beating his father, first of all he had seen the occurrence. He had taken his father from the place of occurrence in a bullock cart without feeding him anything. After the occurrence, it took about one hour to move from the said place and by 4:30 pm, they reached at the P.S. and after reaching there, one hour thereafter, I.O. met them but whether I.O. was inside or not he could not tell. The written report was written by him in day light at the grocery shop, which was located 25-30 paces away from the police station but the name of the shop keeper is not known to him. Paper was also taken from same shop. Oral information was not being recorded at the P.S. and when he told that he was taking back the dead body, then only for lodging the report he was directed to bring the same in writing. Report was lodged on his own and whatever was right, was mentioned therein. His uncle, P.W. 1 Ram Kripal, was at that time with the dead body. Panchayatnama of the dead body was held in the night at 9-9:30 pm, as he was not present there at that time, rather thereafter this witness has stated that he was near the dead body, while his uncle was at the place where panchayatnama was being conducted. The dead body was placed outside the P.S., while panchayatnama was written inside it. He had accompanied the dead body up to Banda. With him, his uncle, Chaukidar, Constable had also gone. The dead body was placed outside the P.S., while panchayatnama was written inside it. He had accompanied the dead body up to Banda. With him, his uncle, Chaukidar, Constable had also gone. His uncle after leaving his mother and sisters at Parsauli had come back. He has denied the suggestion that he had not seen the occurrence and that Chaukidar had taken the dead body from Chausad, while he and his uncle were called from Chausad, thereafter after consultation, this false F.I.R. has been lodged against the accused persons. 23. Dr. G.S. Rana has been examined as C.W. 1, who has stated that he was posted as Medical Officer at District Hospital, Banda on 22.8.1980 and on that date at 12 noon, he had conducted post-mortem of the deceased-Chunvad and had found on his person following injuries. 1. Lacerated wound on the left side skull 5 cm x 1 cm x bone, margins situated 8 cm above left ear and 12 cm above the left eye brow. 2. Lacerated wound on the left side back of skull 2 cm x 1 cm x bone deep, margins lacerated 7 cm above and behind the left ear and 8 cm below and behind injury No. 1. 3. Lacerated wound on the left side back of skull 3.5 cm x 1.5 cm x bone deep, margins lacerated 1 cm below injury No. 2. On exposing the inner table of left temporal bone fractured. There is haematoma under neath the maningies of the brain and brain in congested. 4. Lacerated wound on the back of left ear upper part of pinna 4 cm x 1 cm x bone deep. 5. Lacerated wound on the upper part of left ear pinna 2.5 cm x 1.25 cm x through and through (cartilage of pinna left side cut and lacerated). 6. Multiple contusions on the front and outer aspect of whole of left arm in an area of 30 cm x 16 cm. 7. Multiple contusions on the back of left forearm in an area of 8 cm x 4 cm, 2 cm above the left wrist. On exposing there is fracture of both bones of left forearm. (Clotted blood on the fractured bones end present.). 8. 7. Multiple contusions on the back of left forearm in an area of 8 cm x 4 cm, 2 cm above the left wrist. On exposing there is fracture of both bones of left forearm. (Clotted blood on the fractured bones end present.). 8. Multiple contusions on the left side back of chest and flanks in an area of 24 cm x 18 cm on lower 1/2 of the lower scapula and up to the front of chest. On exposing there is fracture of 6th, 7th, 8th and 9th ribs left side and left side lung is congested. 9. Multiple contusions on the outer aspect of left hip and glutial region in an area of 16 cm x 13 cm. 10. Contusion on the outer aspect of right elbow 4 cm x 2 cm. 11. Multiple contusion on the back of right hand in an area of 6 cm x 5 cm. This witness has proved his report as Ext. Ka-2. 24. In cross-examination, this witness has stated that deceased had died about four to six hours ago and there could have been difference of eight to nine hours in his time of death. 25. S.I. Balbir Singh Rathore, has been examined as C.W. 2, who has stated that on 20.8.1980, till April 1980, when he was posted as Second Officer, P.S. Bisanda, in his presence, F.I.R. of this case has been recorded and then chick report was prepared by Sardar Singh, Head Mohrrir. After seeing, Ext. C-1, he stated that the same was written by Sardar Singh and on the same day, its investigation was handed over to him. Panchayatnama is Ext. C-3, Challan Nash is Ext. C-4, Photo Nash is Ext. C-5, Chitthi to R.I. & C.M.O., are Ext. C-6 and C-7. Thereafter after reaching the place of occurrence, he prepared site plan, which is Ext. C-8. He did not find any blood on the spot as it was rainy season and after concluding the investigation, he has submitted charge sheet as Ext. C-9 on 22.9.1980. 26. It is apparent from the statements of above witnesses that the prosecution has sought to prove its case only on the basis of statement of P.W. 1, who is real brother of the deceased and uncle of the P.W. 2, Ram Milan, (son of the deceased). 27. In site plan, which is Ext. C-9 on 22.9.1980. 26. It is apparent from the statements of above witnesses that the prosecution has sought to prove its case only on the basis of statement of P.W. 1, who is real brother of the deceased and uncle of the P.W. 2, Ram Milan, (son of the deceased). 27. In site plan, which is Ext. C-8, by 'X' the place has been shown from where the deceased has been done to death which is the route mentioned as Gahilwa Talab Sampark Marg, situated to the north of the pond, which is spread in an area of 40 yards to the north of the village Chausad. The route from where the accused came from the village towards the deceased-Chunvad to beat him with Lathis has been shown by "o---o----" and it shows that accused had proceeded from the village Chausad by the western side of the pond and had reached the place of occurrence shown by 'X' on the said route mentioned above, where the occurrence took place. By 'arrow' is shown the route from where the deceased and witnesses i.e. P.W. 1 and P.W. 2 reached the place of occurrence and they have shown the accused coming from the eastern direction to the west, which route goes to the west of Auran Atarra Road. 28. In this site plan, no where investigating officer has shown as to from where the P.W. 1 and P.W. 2 had witnessed the occurrence i.e. the place where they were grazing their cattle and had reached the place of occurrence when they heard the alarm being raised by the deceased when he was being beaten by the accused persons, which appears to be lacunae left by the investigating officer in the present case. It is also apparent from the perusal of the evidence on record that prosecution did not examine the I.O., Head Mohrrir and doctor on its own, rather the court itself had summoned only I.O. and doctor, who conducted the post-mortem on his own as C.W. 2, which also shows lack of dedication on the part of the prosecution to try to prove its case against the accused-applicant to the hilt. 29. 29. If this Court analyses the statement given by P.W. 1 in the light of site plan prepared by I.O., it would be found that statement of P.W. 1 does not inspire confidence because it is mentioned by him that when the accused had reached very close to his brother (deceased), he was challenged by the accused. When this witness heard the challenge, both he and his nephew (P.W. 2) ran towards the deceased to save him. The accused are stated to have fled from there only after assaulting 2 to 4 lathis and when this witness had reached, the deceased was lying on one side. This statement of this witness shows that he had reached the place of occurrence where the deceased was being allegedly thrashed by the accused when the occurrence had already taken place and the deceased was lying on one side, therefore it appears that he is not eye-witness, who has seen the occurrence particularly in the light of facts that his place from where he was stated to have seen the deceased being assaulted, has not been mentioned in the site plan as well. 30. Similarly, P.W. 2's statement would also be rendered unbelievable because he was accompanying P.W. 1 Ram Kripal. If P.W. 1 had not reached there when the occurrence was taking place, how could it be possible that P.W. 2 has seen the occurrence, therefore, statements of both the so-called eye witnesses i.e. P.W. 1 and P.W. 2 do not appear to be confidence inspiring in respect of this occurrence. 31. As regards motive, it has come on record that 'Nani' of P.W. 2 had executed sale deed in favour of P.W. 1, and not in favour of father of the P.W. 1, therefore, there would have been no motive to the accused to kill the deceased, rather they would have motive to kill P.W. 1 (brother of the deceased) because the property which would devolve upon the P.W. 1, would come to the accused only after killing P.W. 1 and not killing father of the P.W. 2. 32. In view of above analysis, I am of the view that the trial court has returned wrong finding of holding the accused-appellants guilty of charge under the above mentioned sections. Accused-Phool Chandra and Bhoora stand acquitted of charge under Section 304 Part-I IPC read with Section 34 IPC and their sureties stands discharged. 32. In view of above analysis, I am of the view that the trial court has returned wrong finding of holding the accused-appellants guilty of charge under the above mentioned sections. Accused-Phool Chandra and Bhoora stand acquitted of charge under Section 304 Part-I IPC read with Section 34 IPC and their sureties stands discharged. 33. Appeal is allowed. 34. Let a copy of this Judgment be transmitted to the trial court along with original record for immediate compliance.