JUDGMENT : Saroj Yadav, J. 1. This appeal has been filed against the judgment and order dated 26.10.1993 passed by Ist Additional Sessions Judge, Barabanki in Sessions Trial No. 248 of 1992, whereby the convicts/appellants were held guilty for the offence punishable under Sections 147, 302/149, 307/149 and 436/149 of the Indian Penal Code, 1860 (in short "I.P.C."). The convicts/appellants were sentenced under Section 147 IPC to one year's rigorous imprisonment, under Section 302/149 IPC with imprisonment for life coupled with a fine of Rs.5000/-each and in default of payment of fine further sentence of one year, under Section 307/149 IPC rigorous imprisonment for five years coupled with fine of Rs.1000/-each and in default of payment of fine two months' further rigorous imprisonment coupled with fine of Rs.500/-each and in default of payment of fine a further sentence for one month. All the sentences were directed to run concurrently. 2. The convict/appellant Sunder Lal died during the pendency of the present appeal and the appeal filed by him stood abated vide order dated 10.03.2021. Now, the present appeal is only for the convict/appellant Anoop Kumar. 3. Necessary facts for disposal of this appeal in short are as under:- A First Information Report (in short "FIR") was registered at Case Crime No. 30 of 1992, under Sections 147/148/149/307/302/427 IPC at Police Station Mohammadpur, District Barabanki, on the basis of written report submitted by the complainant Mansa Ram on 03.03.1992. It was narrated in the written report that Sunder Lal son-in-law of his uncle Haribhajan's elder brother Kirhi Lal used to live in their village since marriage. There was enmity due to property dispute between Haribhajan and Sunder Lal. In the night all family members of the complainant and the family members of his uncle after having their meals were sleeping in their houses. Mahendra, the son of complainant, Satendra the son of his uncle and Radhey Shyam were sleeping in the 'Wasara' situated in the eastern side of the house. On 2/3-03-1992 in the night at about 1 O'clock, his uncle cried loudly saying that they were killing him by burning. He also cried for help. Mahendra, the son of complainant, Satendra the son of his uncle and Radhey Shyam were sleeping in the 'Wasara' situated in the eastern side of the house. On 2/3-03-1992 in the night at about 1 O'clock, his uncle cried loudly saying that they were killing him by burning. He also cried for help. On this, his aunt (Chachi) and Phuphoo (uncle's sister) also raised alarm, then the complainant, Satendra, Mahendra and Radhey Shyam ran towards 'Charhi' of Sunder Lal with torches in their hands and saw his uncle running in a burnt condition and he lied down on the heap of soil and started rolling and crying on that. The son of the complainant and Satendra came forward to douse the fire by throwing sand but Sunder Lal exhorted by saying that they are saving him (deceased) so kill them. On this, Anoop Kumar son of Sunder Lal threw hand-grenade on Satendra, due to which, he got seriously injured and Mahendra son of the complainant also got injured. When many people of the village including Visheshwar Dayal and Pratap Bahadur came there and Visheshwar Dayal and Pratap Bahadur fired with their licensed guns and challenged the miscreants, then they ran away towards north-east direction. They all have seen Sunder Lal and Anoop Kumar in the light of torches and fire flame and recognized them very well. 2-3 more persons were also there along with them, whom the complainant did not recognize by name but could recognize by face. Thereafter, the complainant and others went inside the house and found that all the goods, documents and other articles were burnt and broken in the house of his uncle. His uncle was groaning due to burn and other injuries. The complainant was planning to carry his uncle and other injured persons to the hospital but his uncle died. Sunder Lal and Anoop Kumar along with 2-3 persons had killed his uncle for greed of property. Dead body of his uncle was lying on the spot. The F.I.R. was registered at 3.30 AM on 03.03.1992. 4. After investigation charge-sheet was submitted against the convicts/appellants Sunder Lal and Anoop Kumar under Sections 147/148/149/307/302/427 IPC. The Magistrate concerned took cognizance and committed the case for trial to the Court of Sessions. The trial Court framed charges against the accused persons wherein they denied the charges and claimed to be tried. 5. 4. After investigation charge-sheet was submitted against the convicts/appellants Sunder Lal and Anoop Kumar under Sections 147/148/149/307/302/427 IPC. The Magistrate concerned took cognizance and committed the case for trial to the Court of Sessions. The trial Court framed charges against the accused persons wherein they denied the charges and claimed to be tried. 5. The prosecution in order to prove its case examined 7 witnesses which are as under:- (i) P.W. 1- Mansa Ram, the complainant; (ii) P.W. 2- Satendra, injured and an eye-witness; (iii) P.W. 3-Dr. R.N. Rastogi, who medically examined the injured Satendra; (iv) P.W. 4-Dr. S.P. Rastogi, who conducted autopsy on the cadaver of the deceased Haribhajan Verma; (v) P.W. 5-Constable Moharrir Shyam Lal, who registered the F.I.R. and made entry of the same in the concerned General Diary (G.D.); (vi) P.W. 6- V.R. Saroj, Investigating Officer; (vii) P.W. 7-Constable Amar Nath Yadav, who carried the dead body for post-mortem. Apart from above oral evidence, necessary relevant documents were also proved by the prosecution, which are as under:- (i) Exhibit Ka-1- Written report; (ii) Exhibit Ka-2- Injury report of Satendra Kumar; (iii) Exhibit Ka-3-Post-mortem report of the deceased Haribhajan; (iv) Exhibit Ka-4- Chik FIR; (v) Exhibit Ka-5- Carbon copy of concerned G.D.; (vi) Exhibit Ka-6- Inquest report; (vii) Exhibit Ka-7- Photo-nash; (viii) Exhibit Ka-8- Police Form No. 13; (ix) Exhibit Ka-9-Letter to Chief Medical Officer, Barabanki; (x) Exhibit Ka-10-Letter to Reserved Inspector (R.I.), Barabanki; (xi) Exhibit Ka-11-Recovery memo of blood soaked and plain soil; (xii) Exhibit Ka-12- Recovery memo of remains of hand-grenade; (xiii) Exhibit Ka-13- Recovery memo of ash; (xiv) Exhibit Ka-14-Recovery memo of vessel containing kerosene oil; (xv) Exhibit Ka-15-Site-plan of the place of occurrence where the dead body was found; (xvi) Exhibit Ka-16- Charge-sheet; (xvii) Exhibit Ka-17-Injury report of Mahendra Kumar. 6. After completion of evidence of prosecution the statement of accused persons were recorded. The convict/appellant Anoop Kumar admitted the fact that daughter of Kirhi Lal was married with his father Sunder Lal. He admitted the fact that Kirhi Lal gave 17 Bighas of land to Sunder Lal but denied the fact of execution of "Will" in favour of the deceased Haribhajan. Rest of the facts were denied and said that he has been implicated under the pressure of police. He refused to give any evidence in defence. No witness was produced in defence though the opportunity was given by the trial Court. Rest of the facts were denied and said that he has been implicated under the pressure of police. He refused to give any evidence in defence. No witness was produced in defence though the opportunity was given by the trial Court. The learned trial Court after hearing arguments of both the sides and analyzing the evidence available on record concluded that the accused Sahajram's identity could not be established through any other source except in the evidence of the complainant Mansa Ram and he was not named in the F.I.R. It is in the evidence that there were about 2-3 other persons also, thus total number of assailants was not less than 5. Since the name of the accused Sahajraj was not mentioned in the F.I.R, it creates reasonable doubt about his involvement in the crime. Therefore, learned trial Court acquitted the accused Sahajram from all the charges. Learned trial Court found that it was established beyond reasonable doubt that Sunder Lal and Anoop Kumar along with 3 other assailants formed unlawful assembly with a common intention to commit murder of the deceased Haribhajan and in furtherance of common object they committed murder of Haribhajan and assaulted Satendra and Mahendra with an intention to kill them by throwing hand-grenade on them. Learned trial Court has found proved that the accused persons also set at fire and damaged the properties belonging to the deceased Haribhajan inside his house. Thus, learned trial Court held Sunder Lal and Anoop Kumar guilty and punished them as mentioned herein-above. Being aggrieved of this conviction and sentence, the present appeal has been preferred. 7. Heard Shri Sharad Nandan Ojha, Shri Ram Kumar Verma, Shri Jai Prakash Yadav, learned counsel for the convict/appellant and Shri Pankaj Kumar Tiwari, learned Additional Government Advocate for the State respondent. 8. Learned counsel for the convict/appellant argued that learned trial Court has erred in convicting and sentencing the appellant as there is no evidence against him. The prosecution has not proved its version beyond reasonable doubt. The medical evidence does not corroborate the version presented by the eye witness. The family members of the deceased, who were inside the house where the deceased was sleeping at the time of alleged assault have not been examined in the Court. The injured Mahendra has also not been examined in the Court. The medical evidence does not corroborate the version presented by the eye witness. The family members of the deceased, who were inside the house where the deceased was sleeping at the time of alleged assault have not been examined in the Court. The injured Mahendra has also not been examined in the Court. In the post-mortem report burn injuries have been noted as postmortem burns and not as ante-mortem injuries. It shows that deceased sustained burn injuries after his death but the version of the prosecution is otherwise. In fact, a dacoity was committed by some unknown miscreants and the deceased Haribhajan was killed by them and due to the dispute of property, which was going on between the deceased Haribhajan and father of the convict/appellant, he was implicated in the crime. Hence, this appeal should be allowed and the impugned judgment and order should be set aside. Learned counsel for the convict/appellant has relied upon the decision passed by the Hon'ble Apex Court in the case of Takhaji Haraji Versus Thakore Kubersing Chamansing and others (2001) 6 Supreme Court Cases 145. 9. To the contrary, learned Additional Government Advocate appearing on behalf of the State respondent argued that P.W. 1-Mansa Ram (complainant) and P.W. 2-Satendra (an injured witness) have proved very well that convict/appellant along with his father and other 2-3 miscreants killed the deceased Haribhajan by burning and beating and when Satendra and Mahendra came for rescue of the deceased Haribhajan, the convict/appellant Anoop Kumar hurled hand-grenade, which resulted in injuries to Satendra and Mahendra. The injuries of Satendra have been proved by P.W. 3 and the genuineness of injury report of Mahendra has been admitted by the defence counsel. The injuries found on the body of the deceased have been proved by P.W. 4. The deceased died due to injuries sustained. These injuries were caused by the convict/appellant along with the other unknown persons and house-hold goods were also burnt, which were kept inside the house of the deceased Haribhajan. The place of occurrence has been proved by the Investigating Officer. The recovery of articles from the place of occurrence has also been proved by the Investigating Officer. There is no error in the judgment and order passed by the Court below, hence the present appeal should be dismissed. 10. The place of occurrence has been proved by the Investigating Officer. The recovery of articles from the place of occurrence has also been proved by the Investigating Officer. There is no error in the judgment and order passed by the Court below, hence the present appeal should be dismissed. 10. Considered the rival submissions and perused the original record as well as the record of this appeal and gone through the case law cited. 11. In the present matter, the complainant has alleged in the FIR that on 2/3-03-1992 in the night at about 1 O'clock, his uncle cried loudly saying that they are killing him by burning. He also asked for help. On this, his aunt (Chachi) and Phuphoo (uncle's sister) also raised alarm, then the complainant, Satendra, Mahendra and Radhey Shyam ran towards 'Charhi' of Sunder Lal with torches in their hands and saw his uncle running in a burnt condition and he rolling down on the heap of soil. Then Mahendra son of the complainant and Satendra came forward to put off the fire and started throwing sand on him but Sunder Lal exhorted by saying that they are saving him so kill them. On it, Anoop Kumar son of Sunder Lal threw hand-grenade on Satendra, due to which, he got seriously injured and Mahendra son of the complainant also got injured. When many people of the village including Visheshwar Dayal and Pratap Bahadur came there and Visheshwar Dayal and Pratap Bahadur fired with their licensed guns and challenged the miscreants, then they ran away towards north-east direction. They all have seen Sunder Lal and Anoop Kumar in the light of torches and fire flames and recognized them very well. There were 2-3 persons more along with them to whom the complainant did not recognize by name but could recognize by face. Thereafter, the complainant and others went inside the house and found that all the goods, documents and other articles were burnt and broken in the house of his uncle. His uncle was groaning due to burn and other injuries. They were planning to carry his uncle and other injured persons to the hospital but in the meantime his uncle died. 12. The complainant has been examined as P.W. 1 wherein he improved his version and also implicated Sahajram (brother of Sunder Lal) among the assailants. His uncle was groaning due to burn and other injuries. They were planning to carry his uncle and other injured persons to the hospital but in the meantime his uncle died. 12. The complainant has been examined as P.W. 1 wherein he improved his version and also implicated Sahajram (brother of Sunder Lal) among the assailants. he has also added that he saw in the light of torch and flame of fire that Sunder Lal and Sahajram were all assaulting the deceased Haribhajan with sticks (Lathis). He has further stated that other two miscreants present there were also armed with stick (Lathi) and they were standing behind. He has further stated that he did not recognize them. In the post-mortem examination following ante-mortem injuries were found:- "(i) Contusion 6 cm X 4 cm present on the right side forehead 3 cm above the middle of right eye brow and 3 cm right to midline. (ii) Contusion 10 cm X 8 cm present on the right side temporal parietal region, 3 cm above right ear and 6 cm above the lateral end of right eyebrow. (iii) Contusion 12 cm X 10 cm on the left side temporal parietal region, 4 cm above the lateral border of left eyebrow and adjacent to left ear. (iv) Contusion 8 cm X 10 cm on the left side face extending from left cheek to the lateral side of neck, 2 cm away and below the left ear. (v) Contusion horizontal 28 cm X 2 cm present on the upper part of the chest below both clavicle extending from left shoulder to right shoulder. (vi) Contusion middle and lateral aspect of the left upper part 6 cm X 3 cm. (vii) Contusion abraded left elbow post aspect 4 cm X 3 cm. Ecchymosis present underneath all injuries." 13. In the post-mortem report it has also been noted that "post-mortem burn present all over the body except foot and sole". The cause of death in the post-mortem report has been mentioned "shock as a result of head injury". This autopsy report shows the post-mortem burns and not ante-mortem burn. If the deceased was running in the burning state and rolling on the heap of sand to put off the fire and that Satendra and Mahendra also threw the sand to put off the fire, then ante-mortem burn injuries must be there. This autopsy report shows the post-mortem burns and not ante-mortem burn. If the deceased was running in the burning state and rolling on the heap of sand to put off the fire and that Satendra and Mahendra also threw the sand to put off the fire, then ante-mortem burn injuries must be there. Post-mortem burn injuries would come only if the body is put on fire after the death. In the opinion of the doctor, the deceased died due to ante-mortem injury specially found on the head of the deceased. In such a situation, the statements of P.W. 1 (complainant) and P.W. 2 Satendra are not trustworthy. As per the version of the F.I.R. the incident originated inside the house of the deceased Haribhajan, where the deceased was sleeping and his wife and sister were also sleeping inside the house. No witness has been produced to prove the fact how the incident originated. According the statement of the P.W. 1 as well as the version of F.I.R. the wife and sister of the deceased Haribhajan were present in the same house but none of them has been examined to prove the origin of the incident. P.W. 1 and P.W. 2, who have been examined as witnesses of facts have not stated how the incident originated inside the house. What they have stated is that they heard the cry of the deceased that he is being killed by burning and saw the deceased running in burning state and thereafter rolling on the heap of sand to put off the fire and also that Satendra and Mahendra also tried to throw the sand to put off the fire. The medical evidence is otherwise. No antemortem burn injury was found rather post-mortem-burns were found but about those injuries evidence was not on record. None of the witnesses examined was present in the house. The wife and daughter of the deceased who were present in the house have not been examined. The medical evidence is otherwise. No antemortem burn injury was found rather post-mortem-burns were found but about those injuries evidence was not on record. None of the witnesses examined was present in the house. The wife and daughter of the deceased who were present in the house have not been examined. In the case of Takhaji Haraji (Supra) the Hon'ble Apex Court has held as under:- "It is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the Court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself _whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of non-examination of other witnesses." 14. In the F.I.R. there is no mention of the fact that the deceased was beaten by stick (Lathi) also but in the Court the witnesses have improved their version probably to bring the evidence in consonance with the medical evidence. In the F.I.R. there is a version only about deceased being burnt but according to the post-mortem-examination report the deceased did not die due to burn injuries. The burn injuries found on the person of the deceased were post-mortem-burns. In the F.I.R. there is a version only about deceased being burnt but according to the post-mortem-examination report the deceased did not die due to burn injuries. The burn injuries found on the person of the deceased were post-mortem-burns. It indicates that P.W. 1 and P.W. 2 either did not see the incident or did not reveal the real story. Non production of wife and Phuphoo (sister of the deceased) as witnesses, who were present inside the house, where the incident allegedly originated goes against the prosecution because they were the persons, who were close relatives and nearest to the place of occurrence at the time of incident. The defence of the convict/appellant is that a dacoity took place in the house of the deceased, wherein he got injured and died and the convict/ appellant and his family members were implicated due to enmity as some dispute relating to property was going on between the deceased and the convict/appellant Sunder Lal (now dead), the father of the convict/appellant Anoop Kumar. The fact of dispute relating to the property has also been alleged in the F.I.R. as a motive of crime. In these circumstances, the possibility of the deceased being killed by dacoits and false implication of the convict/appellant cannot be ruled out. It is the version of the complainant that the convict/appellant Sunder Lal was residing in the village since his marriage with the daughter of Kirhi Lal his another uncle, as Kirhi Lal had no son and he gave 17 Bighas of land to his son-in-law Sunder Lal. This might be a great cause of false implication of the convict/appellant in the crime, who is son of Sunder Lal. In the F.I.R., it has been written that the deceased was groaning and they were planning to carry him to hospital, however in the meantime, he died but this version is not consistent with post-mortem-examination report, where post-mortem-burns have been noted. A person cannot groan after his death. 15. Thus to some up, the story of the prosecution and the evidence led to prove the prosecution story creates serious doubts and in such a situation, benefit of doubt should be given to the convict/appellant and he deserves acquittal. Accordingly the appeal is allowed. A person cannot groan after his death. 15. Thus to some up, the story of the prosecution and the evidence led to prove the prosecution story creates serious doubts and in such a situation, benefit of doubt should be given to the convict/appellant and he deserves acquittal. Accordingly the appeal is allowed. The judgment and order dated 26.10.1993 passed by Ist Additional Sessions Judge, Barabanki in Sessions Trial No. 248 of 1992, under Sections 147, 148 and 302 IPC, Police Station Mohammadpur, District Barabanki is hereby set aside. 16. Let the appellant-Anoop Kumar convicted and sentenced in Sessions Trial No.248 of 1992, under Sections 147, 148 and 302 IPC, Police Station Mohammadpur, District Barabanki be released from the jail, if not required in any other case. 17. Appellant Anoop Kumar is directed to file personal bond and two sureties each in the like amount to the satisfaction of the court concerned in compliance with Section 437-A of the Code of Criminal Procedure, 1973. 18. Office is directed to send a copy of this order along with lower Court record to the trial Court concerned for necessary information and compliance forthwith.