JUDGMENT : 1. Heard Sri. Devendra Pratap Singh, learned Amicus Curiae for the appellant, Sri. Ajit Ray, learned AGA and perused the record. 2. This criminal appeal has been preferred against the judgment and order dated 20.02.1996, passed by Vth Additional Sessions Judge, Kanpur Dehat in Sessions Trial No. 26/1989, State vs. Arvind and Others, under Sections 302 and 120B IPC, Police Station Roora, District Kanpur Dehat by which the accused-appellant namely Arvind Singh has been convicted and sentenced for the offence under Section 302 IPC for life imprisonment along with fine of Rs. 1000/- and in default of fine one year additional rigorous imprisonment, whereas he has been acquitted from the charge under Section 120B IPC. 3. Brief facts of the case is that a first information report was lodged by Munnu Singh (Home Guard) in respect of a criminal incident dated 24.08.1988 at 08:45 PM. The informant is a Home Guard in the village Maizu Mau, Police Station Roora, was on surveillance duty with Home Guards Ghasite Lal, Pancham Lal and Govind Singh in the town and when they were coming from the side of canal to the railway station, at about 08:45 PM, reached in front of town area office on the road. They heard somebody crying Bachao-Bachao from the side of shop of Naresh Kumar. All ran towards the sound raising alarm. They saw that on the road side two persons having Gandasa and axe were assaulting a person. They challenged and seeing them, both the persons ran towards the north of the street and despite efforts made by them, they could not be caught. They saw two persons in the light of torch and electricity and can identify them if they come before them. They saw that a person was lying dead on the spot sustaining injuries. The injuries were bleeding. Many persons reached there and seeing the deceased they said that the deceased person was Aditiya Kumar son of Krishna Bihari Dixit of town Roora. The informant, leaving behind the other Home Guards there, gave an oral information in the police station and on the basis of it, the offence was registered under Section 302 IPC against two unknown persons. On investigation, names of accused persons Arvind Singh, Babua and Sunil Singh came in light. The informant, leaving behind the other Home Guards there, gave an oral information in the police station and on the basis of it, the offence was registered under Section 302 IPC against two unknown persons. On investigation, names of accused persons Arvind Singh, Babua and Sunil Singh came in light. The dead body was taken into possession, inquest report and necessary papers for postmortem was prepared, the dead body was sealed and sent to the District Hospital, Kanpur Nagar for postmortem. The torch of the guard was taken into possession, memo was prepared and the torch was delivered back to him. Blood stained and plain earth was collected from the spot and was kept in two separate containers which were sealed and memo was prepared. After taking the evidence of the witnesses and completing the investigation, charge-sheet was submitted against all the three accused persons for the offence under Sections 302 and 120B IPC. Charges were framed for the aforesaid offences against all the accused persons who denied charges and claimed trial. It appears from the impugned judgment that after six witnesses were examined, accused Jaipal Singh @ Bauwa absconded and the trial court separated his file by order dated 29.01.1993, registered as ST No. 26A/89 and thereafter the statement of other witnesses were recorded. On completion of the prosecution evidence, the Statement of the two accused persons were recorded under Section 313 Cr.P.C. who put forward the case of denial and stated that they have been falsely implicated in the case due to enmity and with the consultation of the police, the report was lodged. In defence, the accused persons have filed Ext. Kh-1 which is copy of FIR under section 171/332 IPC against Sone Lal, lodged by accused Ramswaroop for committing marpeet and causing obstruction in election process. The learned trial court has noted that accused is neither named nor it has any relation with him. 4. After perusing the evidence and hearing the counsel of both the parties, the learned trial court acquitted accused Sunil for the offence under Sections 302/120B IPC and also acquitted accused Arvind for the offence under Section 120B IPC. Accused Arvind was, however, convicted and sentenced for the offence under Section 302 IPC. 5. Feeling aggrieved by the impugned judgment, the appellant has filed this criminal appeal challenging the impugned judgment stating that to be against the weight of evidence on record. Accused Arvind was, however, convicted and sentenced for the offence under Section 302 IPC. 5. Feeling aggrieved by the impugned judgment, the appellant has filed this criminal appeal challenging the impugned judgment stating that to be against the weight of evidence on record. The prosecution failed to prove the guilt beyond reasonable doubt and the awarded sentence is too severe, therefore, the impugned judgment is liable to be set aside and the accused-appellant is entitled for acquittal. 6. The prosecution has examined as many as seven witnesses in support. PW-1 Munnu Singh (informant) has proved his oral report and has given the evidence about the incident. PW-2 Govind Singh, Home Guard and PW-3 Rakesh Kumar Gupta are the witnesses of fact. PW-4 SI S.B. Mishra has proved the inquest report and other papers which were prepared for the purpose of sending the dead body for postmortem. He has also proved the memo of two slippers of the deceased and memo of blood stained and plain earth. PW-5 Akhilesh Kumar is also a witness of fact. PW-6 Dr. A. Rahman (Senior Medical Officer) has proved the postmortem report. PW-7 Inspector R.P. Singh is the Investigating Officer. All these witnesses have proved chik FIR Ext. Ka-1, inquest report Ext. Ka-2, challan dead body Ext. Ka-3, photo nash Ext. Ka-4, letter to CMO Ext. Ka-5, letter to RI Ext. Ka-6, sample seal Ext. Ka-7, memo of sleepers Ext. Ka-8, memo of blood stained and plain earth Ext. Ka-9, postmortem report Ext. Ka-10, site map Ext. Ka-11, memo of torch Ext. Ka-12, charge-sheet Ext. Ka-13 and Material Exts.1 to 3. 7. The submission of the learned Amicus Curiae for the appellant is that all the prosecution witnesses have given false evidence and the discrepancy and improvement made by them goes to show that they are not consistent and reliable. PW-5 is the brother of the deceased and has been examined as eye witness. He has not been produced for cross-examination and instead of lodging any FIR, he went back to Kanpur. It has also been submitted that the informant was declared hostile. Accused Sunil has been already acquitted by the learned trial court. On the other hand, learned AGA has submitted that the learned trial court on the basis of evidence on record has convicted the accused and there is no illegality in the impugned judgment. 8. It has also been submitted that the informant was declared hostile. Accused Sunil has been already acquitted by the learned trial court. On the other hand, learned AGA has submitted that the learned trial court on the basis of evidence on record has convicted the accused and there is no illegality in the impugned judgment. 8. At this stage, it appears necessary to look at the evidence of prosecution in this case. PW-1 Home Guard Munnu Singh (informant) has stated that on 24.08.1988, he was on surveillance duty in the town Roora with Home Guards Ghaseta Lal, Pancham, Ram Prasad and Govind. When they were coming back from the side of canal to the railway station through road, at about 09:00 PM, in the night, they heard the sound of Bachao-Bachao near the town area. They rushed towards the sound, whereupon, the assailants ran away. It was raining and in the dark night he could not see the assailants. After the incident, 5 to 10 persons gathered there and they recognized the deceased to be the son of Pandit Ji. This witness has been declared hostile. 9. PW-2 Home Guard Govind Singh has also stated that on 24.08.1988, when he along with Home Guard Munnu Singh, Ghaseta Lal, Pancham and Ram Prasad was coming from the side of canal and was going towards the town area, they heard the voice of Bachao-Bachao. It was 09:00 PM and on hearing the voice, they rushed towards the voice making sound of Pakdo-Pakdo. He saw that Arvind with axe and Bauwa Singh with gandasa were assaulting the deceased Aditiya. They tried to catch them but they ran away from there. The witness has also stated that besides these two, accused Sunil Kumar was also there, who ran away towards the house of Ram Swaroop. They came back and found that Aditiya was lying dead. They saw the incident in the light of torch and electricity. Home Guard Munnu Singh went to give information to the police station. 10. PW-3 Rakesh Kumar Gupta has stated that on 24.08.1988, Aditiya Kumar was killed. On that day, he had come from Kanpur to Roora by Shatal (train) and was going to his house from Roora Station with Aditiya Kumar and Akhilesh. When they reached in front of the clinic of Dr. Naresh, accused Sunil stopped and started talking to Aditiya. 10. PW-3 Rakesh Kumar Gupta has stated that on 24.08.1988, Aditiya Kumar was killed. On that day, he had come from Kanpur to Roora by Shatal (train) and was going to his house from Roora Station with Aditiya Kumar and Akhilesh. When they reached in front of the clinic of Dr. Naresh, accused Sunil stopped and started talking to Aditiya. At that time Arvind, Bauwa Singh and Ram Swaroop Singh were also present. Accused Arvind having an axe, Bauwa with gandasa started assaulting Aditiya by gandasa and axe. Ram Swaroop exhorted to kill the deceased. This incident took place at about 08:45 PM. On being assaulted, Aditiya fell down. The incident was seen by him, Akhilesh and Prakash Gupta and the five Home Guards who challenged the assailant, whereupon, the accused persons ran away and behind them accused Sunil also rushed away on his cycle. The Home Guards chased them. The deceased died on spot and he went to his house. In the light of bulb and torch, he saw the incident and identified the accused persons. 11. PW-4 SI S.B. Mishra has stated that on 24.08.1988, he along with SO R.P. Yadav went to the place of occurrence and he prepared the inquest report and sealed the dead body. He also prepared necessary papers for postmortem and with the papers, handed over the dead body to Constables Rama Shanker and Brahama Nand for postmortem. 12. PW-5 Akhilesh Kumar is the brother of deceased. He has stated that on 24.08.1988, he and the deceased were coming from Kanpur by Shatal train to Roora and were going to their house. Rakesh and Prakash were also on the train who were also accompanying them. When they reached to the clinic of Dr. Naresh, accused Sunil stopped the deceased and started talking. Accused persons Arvind Singh, Bauwa Singh and one Ram Swaroop were also present there. Arvind Singh and Bauwa with axe and gandasa started assaulting the deceased. Ram Swaroop exhorted them to kill the deceased. The deceased was crying Bachao-Bachao, whereupon the Home Guards came and in the light of torch they saw the accused and the incident. Accused Sunil ran away towards the house of Ram Swaroop and remaining accused persons ran away towards the north. This incident took place at 08:45 PM. He has stated that his brother had died. He came back to Kanpur to inform his father. 13. Accused Sunil ran away towards the house of Ram Swaroop and remaining accused persons ran away towards the north. This incident took place at 08:45 PM. He has stated that his brother had died. He came back to Kanpur to inform his father. 13. PW-6 is Dr. A. Rahman has stated that on 25.08.1988, he was posted as Medical Officer, T.B. Isolation Hospital and at 02:10 PM, he conducted postmortem of the dead body of Aditiya Kumar and prepared the postmortem report which is Ext. Ka-10. The deceased must have died. The deceased must have died 3/4 day before and there may be six hours difference in either side. On external examination, it was found that the deceased was average built, rigor mortise was present in the upper and lower limb. Mouth was closed but the right eye was open. The following ante-mortem injuries were found on the body of the deceased: (1) 8 c.m. x 1½ c.m. x underline bone clean cut on right side of head, 7 c.m. above right ear, directed downwards, backwards + to right, right parietal bone found clean cut. Edges clean cut. no fiver or tissue in the gap of wound. (2) Incised wound 9 c.m. x 1½ c.m. x bone deep, 1½ c.m. below + parallel to injury no. 1, same nature of wound. (3) Incised wound 7 c.m. x 1½ c.m. x bone deep, 2 c.m. above + behind right ear oblique downwards + backwards, edges clean cut. (4) Incised wound 8 c.m. x ½ c.m. horizontal on back of head, underlying bone found clean cut, 3 c.m. behind the injury no. 3. (5) Incised wound 10 c.m. x 2½ c.m. x cavity deep, 4 c.m. above injury no. 4 + parallel to it, edges clean cut. (6) Incised wound 8 c.m. x 2 c.m. x on back of head vertically crossing the injury no. 5, edges + bone clean cut. (7) Incised wound 8 c.m. x 2 c.m. horizontally 2 c.m. above back of left ear, edges + bone clean cut. (8) Incised wound 16 c.m. x 3 c.m. x cavity deep of left side of head from the mid line of the forehead, 2 c.m. down to mid line, edges + bone (temporal + left perital clean cut). (9) Incised wound 3½ c.m. x 2 c.m. x alna side of right forearm, alna found cut, edges + bone clan cut. (8) Incised wound 16 c.m. x 3 c.m. x cavity deep of left side of head from the mid line of the forehead, 2 c.m. down to mid line, edges + bone (temporal + left perital clean cut). (9) Incised wound 3½ c.m. x 2 c.m. x alna side of right forearm, alna found cut, edges + bone clan cut. (10) Incised wound 7 c.m. x 3 c.m. x bond deep of outside of left knee, clean cut, edges clean cut horizontally. (11) Incised wound 2½ c.m. x 1½ c.m. x muscle deep, 2 c.m. below injury no. 10, edges clean cut horizontally. (12) Incised wound 4 c.m. x 2 c.m. x muscle deep in middle of left pop on literal region horizontally, edges clean cut. The doctor has said that all wounds were clean cut edges and there was no interlocutory tissue in the gaps of the wound. In the internal examination, it was found that right parietal, left parietal + frontal bone were found clean cut under above lying injuries as mentioned. Membranes cut under injury nos. 5 and 8. Brain tissues out from injury no. 8. Both chambers of the heart were found empty. According to doctor, the death was due to shock and hemorrhage resulting out of ante-mortem injuries. 14. PW-7 R.P. Singh (Investigating Officer) has stated that on 24.08.1988 at 09:10 PM, in the night, the offence was registered on the oral report of Home Guard Munnu Singh and the chik was prepared by Head Constable Ram Baran. He went to the spot and took the statement of Munnu. Inquest report was prepared by SI S.D. Mishra on his direction and necessary papers were also prepared. The dead body was sealed and sent for postmortem. The statement of the inquest witnesses was recorded. By the statement of Home Guard Govind Singh, the name of accused persons came in light and on his identification the site map was prepared. The statements of other witnesses namely Bhagwan Singh, Om Prakash, Akhilesh and Rakesh Kumar etc. were recorded by him. The statement of Home Guards Ghasita Lal, Ram Prasad, Pancham Lal was also recorded. The torch of Home Guard Govind Singh was taken into possession and memo was prepared and torch was given back to him. On 05.12.1988, he was transferred and the investigation was given to SI T.P. Singh who submitted charge-sheet against the accused persons. The statement of Home Guards Ghasita Lal, Ram Prasad, Pancham Lal was also recorded. The torch of Home Guard Govind Singh was taken into possession and memo was prepared and torch was given back to him. On 05.12.1988, he was transferred and the investigation was given to SI T.P. Singh who submitted charge-sheet against the accused persons. The witness has proved the charge-sheet and GD report as he had seen SI T.P. Singh writing and signing. 15. Coming to the FIR which has been lodged by HG Munnu Singh orally in the concerned police station. On 24.8.1988, the incident allegedly took place at 8.45 PM and the FIR has been lodged on the same day at 9.10 PM and there appears to be no delay as the police station is situated at a distance of only 2 furlong. The place of occurrence as shown by IO is according to FIR and the same has been proved by all the fact witness. Place where dead body was found as described in the inquest report and from where blood stained and plain earth was taken also corroborated the place of occurrence. In the postmortem report, it has been mentioned that the deceased died at the time and date alleged by prosecution because of the twelve serious injuries found on the body of deceased which were caused by sharp weapon. The only thing which was to be determined by the trial court was whether the accused persons including appellant caused death of the deceased. 16. Five home guards who were on surveillance duty allegedly saw the incident and only two of them have been examined. Allegedly, they saw the assailants and could recognize them by face. They did not know the names of assailants. PW-1 Informant Munnu Singh has stated that after the incident, 10 to 5 persons reached there and recognized the dead person as Aditya Kumar s/o Krishna Bihari Dixit of town Rura. Clearly, no body could tell the name of the assailants, otherwise, named FIR must have been lodged. PW-2 Govind has also stated that after chasing the assailants, when they came back, 10-20 persons were gathered there who recognized and disclosed the name of the deceased. PW-1 has stated that it was rainy dark night and he could not see the assailants. PW-2 Govind has also stated that after chasing the assailants, when they came back, 10-20 persons were gathered there who recognized and disclosed the name of the deceased. PW-1 has stated that it was rainy dark night and he could not see the assailants. He could not recognize the assailant as the moment they rushed towards sound, the accused fled away from there. He has stated in the cross-examination that despite electric bulb, there was power cut at the time of incident. The 5-10 persons who reached there came after the accused persons fled away from there. He has further stated that after report was lodged, it was not read over to him. He is illiterate and he just signed over the chick. This witness has been declared hostile as he has disowned the FIR by saying that FIR was not read over to him and that he did not see the assailant. Thus, PW-1 has stated nothing to support prosecution case showing involvement of the accused persons in the commission of the offence. He has clearly stated that because of darkness and rain, he could not see and recognize the assailants. It is clear from the above discussion that by the time FIR was lodged, the name of the assailants was not known and people reached after the incident. 17. PW-2 Govind Singh brings a shift and in examination-in-chief, took the name of accused Arvind with axe and Babua Singh with gandasa and has stated that they were assaulting Aditya. With these two accused persons, accused Sunil was also there who ran away by cycle from the side of the house of Ramswarup. It appears strange. In the FIR accused persons are not named. People gathered there came after incident. But, PW-2 has deposed as if he was knowing the accused persons and the deceased by their name and he said it to the informant. If it was so, there should have been a named FIR as there was nothing to prevent the informant to lodge named FIR against the accused persons. This gives a valid point to determine whether at the time of lodging FIR, the assailants were known to the witness. It has been nowhere stated by the witness that he was acquainted with the accused persons prior to the incident. This gives a valid point to determine whether at the time of lodging FIR, the assailants were known to the witness. It has been nowhere stated by the witness that he was acquainted with the accused persons prior to the incident. He has also not disclosed the name of any person who might have told the name of the assailants. During cross- examination, PW-2 has stated that they heard ‘bachao bachao’ when they were at town area office which was at the distance of 50 to hundred yards away from the spot and when they reached there, they found the deceased lying there. It was a cloudy whether but it was not raining and they chased the accused and on return, they found 15-20 persons gathered there and they told that the deceased is Aditya. He further states that from town area office, on hearing sound of ‘bachao bachao’ they shouted not to kill the deceased and then the assailants ran away. They all chased and behind their back he lit the torch and saw them from their back but could not see their face. The witness has tried to cover by saying that anybody can be recognized from the back. In our opinion, it is possible only when the accused is known and acquainted but in absence of such positive evidence, it cannot be believed that the witness could recognize the accused persons from the back in torch light in the cloudy dark night. The witness has said that when he lit the torch, the accused persons were not assaulting but running away. It goes to show that this witness even did not see the accused persons assaulting. The witness has said that at the time of preparing inquest report, he had disclosed the name of accused persons and it was mentioned in the inquest report. We have perused the inquest report and we find that the name of the accused persons is not mentioned therein. Moreover, PW-2 Govind is not a witness of inquest report. He has stated that he disclosed the name of the assailants to the informant. This also appears to be false as the informant has not named the accused persons in FIR. On the basis of above analysis of the evidence and apparent discrepancy and substantial improvement in the testimony, we are of the view that PW-2 is not trustworthy and reliable. 18. This also appears to be false as the informant has not named the accused persons in FIR. On the basis of above analysis of the evidence and apparent discrepancy and substantial improvement in the testimony, we are of the view that PW-2 is not trustworthy and reliable. 18. PW-3 Rakesh Kumar Gupta and PW-5 Akhilesh have been examined as eyewitnesses. Both claim that they came together to Rura from Kanpur by same train together with the deceased. There is no evidence on record that soon before the incident some train arrived there. It was necessary as PW-1 and PW-2 have not stated that these two witnesses were present and saw the incident. On the contrary the people reached there after the incident. Had they been present, they must have signified it to the Home Guards. But, there is nothing as such in the statement of any of the witnesses. They have stated the involvement of not only two accused Arvind and Babua Singh, but also of accused Sunil who stopped the deceased and started talking with him and of Ramswarup extorting the two main accused. On the contrary both have stated that the assailants ran away from there the moment the home guards reached. The most strange and unnatural conduct of these two witnesses is that PW-3 did not stay there and returned home, whereas, PW-5 Akhilesh, the brother of the deceased did not himself lodge the FIR and went back to Kanpur. None of them has stated that they disclosed the names of accused persons to the Home Guards. PW-5 has not even appeared nor has been produced for cross-examination and his evidence is not readable against the accused. Not lodging the FIR and not coming for cross-examination and also the conduct that he did not stay there and went back to Kanpur is so unusual that his presence appears to be suspicious at the time of incident. Both have stated that on being assaulted, when the deceased fell down, the home guards reached. If it was so, there was no question of FIR being lodged against unnamed persons. PW-1 and PW-2 have not stated that at the time of incident, the brother of the deceased was present and he saw the incident. Had he been present at the time of incident, there could have been no occasion for PW-1 to lodge FIR. If it was so, there was no question of FIR being lodged against unnamed persons. PW-1 and PW-2 have not stated that at the time of incident, the brother of the deceased was present and he saw the incident. Had he been present at the time of incident, there could have been no occasion for PW-1 to lodge FIR. Normally, FIR is lodged by police when no one has either seen the incident or the assailants and deceased are unknown and not identified. 19. While appreciating the evidence of a witness claiming to have seen the incident, the court has to consider the entire testimony of the witness and look for the factors such as (1) whether the witness was present on the spot, (2) whether the witness had seen the incident and (3) whether the witness is credible. PW-1 and PW-2 have not stated that PW-3 was present there at the time of incident. But, PW-5, the brother of the deceased, has not been produced for cross-examination and his statement cannot be read to support the claim of PW-3 that he came with the deceased and his brother together by the same train. He did not come forward at the time of incident to disclose the name and identity of the accused persons. He himself has stated that he did not talk to any of the home guards and he straight forward moved towards his home. It is clear that the witness is not named in FIR nor the IO has marked the place in the site map from where he saw the incident. We are conscious of the settled proposition of law that it is not necessary that eyewitnesses should be necessarily mentioned in the FIR. It has been held in Raj Kishore Jha vs. State of Bihar, 2003 (47) ACC 1068 (SC) and Chittarlal vs. State of Rajasthan, (2003) 6 SCC 397 , mentioning of names of all witnesses in FIR or in statements u/s 161 Cr.P.C. is not a requirement of law and non-mentioning of the name of any witness in the FIR would not justify rejection of evidence of the eye-witness. But, in the facts and circumstances of this case where the name of accused persons was not known till lodging of FIR and PW-1 and PW-2 do not state regarding presence of the witness and say that people gathered there after the incident, the non-mentioning of the name of PW-3 in FIR becomes significant to support the conclusion that there is no evidence to establish his presence at the time of occurrence. 20. There is no evidence that PW-3 or his family live close to the place of occurrence or at the alleged time he used to be there usually. It was rainy and cloudy season and unless for good reason, the witness was not supposed to be there. He came from train from Kanpur is a fact which is not supported by any evidence. The brother of the deceased was with him but as he has not been produced for cross-examination, his evidence cannot be read to support this fact. It shows that PW-3 was maximum a chance witness and it has been held by the Supreme Court in Kallu vs. State of Haryana, AIR 2012 SC 3212 , Ramesh vs. State of U.P. 2010 (68) ACC 219 (SC) and Jarnail Singh vs. State of Punjab, 2009 (67) ACC 668 (SC) that the reason for a chance witness being present on the spot and his testimony requires cautious and close scrutiny. If considered from that angle also, since he is a witness whose very presence at the time of incident has been found to be doubtful, his evidence cannot be relied to record conviction. 21. We also find that none of the fact witnesses have stated any motive for the offence. There was no quarrel between the deceased or his family and the accused persons or their family earlier or at the time of incident. There is no evidence of community of interest or conflict of interest between two sides, nor it has been brought on record that there was any neighborhood jealous, group or local rivalry between them. The prosecution has based the prosecution on the basis of eyewitness account and direct evidence. It is true that absence, lack or inadequacy of motive goes to the back seat and is not significant in the cases based on direct evidence. The prosecution has based the prosecution on the basis of eyewitness account and direct evidence. It is true that absence, lack or inadequacy of motive goes to the back seat and is not significant in the cases based on direct evidence. But, the discussion so far shows that none of the fact witnesses examined by prosecution can be said to be present and had seen the incident. Therefore, absence of motive for the offence is significant. Motive is a necessary element of crime which prompts the offender to commit crime and it is not normal that an offence will be committed for no reason, small or big. Moreover, where the account of alleged eyewitnesses is not credible and the presence of the witness is doubtful, not alleging any motive, even a small reason for the offence, certainly goes to the root of the prosecution case. 22. There is yet another factor. The offence has been alleged to have been committed by axe and gandasa. The CD dated 3.9.1988 makes a mention that the accused persons were in jail by 30.8.1988, within 45 days from the date of incident. It appears on record that neither their statement was recorded by IO nor they were taken on police remand nor any effort was made to recover the axe and gandasa used for the commission of offence. The medical evidence shows that all the injuries found on the dead body were incise wounds and the doctor has stated that edges of all wounds were clean cut. Axe and gandasa, normally, are heavy sharp weapons. To ascertain that the nature of said injuries were possible by axe and gandasa, the recovery of weapon could have been useful. No explanation has been furnished by the prosecution why no such effort was made to recover the weapons. It appears to be a very material lapse committed by the IO because of which a relevant evidence could not be placed before the learned trial court which was necessary to arrive at a correct conclusion. 23. The criminal jurisprudence in the country is based on the principle that unless the guilt is established convincingly on the basis of evidence on record, none should be punished. 23. The criminal jurisprudence in the country is based on the principle that unless the guilt is established convincingly on the basis of evidence on record, none should be punished. In Rang Bahadur Singh vs. State of U.P. AIR 2000 SC 1209 the Supreme Court has observed: “The time-tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits.” 24. Similarly, in State of U.P. vs. Ram Veer Singh, 2007 (6) Supreme 164 the Court reiterated the above principle and remarked as follows: “The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice, which may arise from acquittal of the guilty is no less than from the conviction of an innocent.” 25. In this instant case, the learned trial court appears to have been swayed away by the fact of murder of the deceased. Guilt is not a matter of inference and it should be proved beyond shadow of any doubt by cogent and reliable evidence. The principle which governs the criminal jurisprudence is the presumption of innocence in favour of accused. Serious and heinous crime requires more strict proof and seriousness of offence itself is no ground for conviction. The trial courts have to give finding on the basis of legal proof after making objective assessment of the evidence. The FIR was against unknown persons and the informant was declared hostile. Another witness who was accompanying the informant could not convincingly state that he was acquainted with the accused persons. He only saw the accused persons from their back and appears to be more probable that he could not recognize them. There was no other witness according to him and therefore, the presence of PW-3 at the time of incident is falsified. The own brother of the deceased has not been produced for cross-examination. He did not lodge FIR went back to Kanpur. Both these witness did not participate in inquest proceeding or disclose their presence to the IO who came there soon after the incident. The own brother of the deceased has not been produced for cross-examination. He did not lodge FIR went back to Kanpur. Both these witness did not participate in inquest proceeding or disclose their presence to the IO who came there soon after the incident. Therefore, the conduct of these witnesses is unnatural and it gives rise to the probability that they neither saw anything nor they were present. No motive has been alleged nor any enmity has been shown between two sides which also creates doubt on the prosecution case. 26. On the basis of above discussion, we find that the learned trial court has based it's judgment on totally untrustworthy and unreliable evidence ignoring inherent infirmities in the prosecution version and the material contradiction, inconsistencies and substantial improvement made by the fact witnesses. The learned trial court has acquitted the co-accused Sunil which shows that prosecution version was found incorrect at least in respect of one accused. As such there is apparent perversity and illegality in the impugned judgment and the same is not sustainable under law and is liable to be set aside. 27. Consequently, this criminal appeal is allowed. The impugned judgment dated 20.2.1996 passed in S.T. No. 26/1989 is set aside. The accused-appellant Arvind Singh is therefore acquitted from the charge under section 302 IPC. 28. Sri. Devendra Pratap Singh, learned Amicus Curiae shall be paid Rs. Ten Thousands only for the assistance and legal service provided by him in conducting this appeal for the accused-appellants. 29. Office is directed to transmit the lower court record along with a copy of this judgment to the learned court below for information and necessary compliance.