JUDGMENT : (Renu Agarwal, J.) 1. The present Criminal Appeal has been filed against judgment and order dated 30.01.1984, passed by Sri Gopal Swarup Sinha, VIIth Additional Sessions Judge, Lucknow, in Session Trial No.508 of 1982 (State Vs. Sumar and others), under sections 302 IPC read with section 34 IPC, Police Station Mall, District Lucknow, convicting and sentencing the accused appellants with rigorous imprisonment for life. 2. Wrapping the facts in brief, complainant Smt. Makana was sleeping alongwith her children in her house on 30.04.1981. On 30.04.1981 at about 5.30 a.m. when she heard the cries of her husband Mithan, who was sleeping in Khaliyan she immediately rushed toward the place of occurrence alongwith Sardar son of Shatau and Shazade son of Subhan who were present in their Khaliyan. She saw that Sumar @ Jhuri son of Molhay, Mangre son of Molhay, Sulaman son of Naththa were beating her husband by lathi and kanta, when they reached at the place of occurrence all of them took to their heels. Her husband sustained injuries in this incident and was carried to police station in unconscious state. She reached the police station and lodged FIR. On the basis of oral information FIR was lodged in police station against all the three persons under section 308 IPC. Injured Mithan was sent for medical examination, but he expired in Balrampur Hospital on 30.04.1981 at about 1.30 p.m., thereafter, the case was converted into section 304 IPC. The investigation was conducted by S.I. Shyamraj Yadav who recorded the statement of complainant and witnesses, visited the place of occurrence and prepared site plan, sent the dead body for autopsy on 01.05.1981, arrested the accused and after collecting sufficient evidence filed charge sheet against all the accused. Committal proceeding took place before the Chief Judicial Magistrate, Lucknow, who vide order dated 02.12.1982 committed all the three accused persons to the court of session. The court of session framed charges under section 302 read with section 34 IPC, against Sumer @ Jhuri, Mangre and Suleman, read over and explained to them, who abjured from the charges and claimed to be tried. 3. In order to prove the case prosecution adduced following itnesses:- “P.W.-1, complainant Makana, P.W.-2 Sardar, eye witness, P.W.-3 Raeesa, P.W.-4 S.I. Ujiyare Lal, P.W.-5 Constable Ram Lakhan Yadav, P.W.-6 Dr. S.H.A. Rizvi, P.W.-7 Sub Inspector Shyamraj Yadav P.W.-8 Dr. 3. In order to prove the case prosecution adduced following itnesses:- “P.W.-1, complainant Makana, P.W.-2 Sardar, eye witness, P.W.-3 Raeesa, P.W.-4 S.I. Ujiyare Lal, P.W.-5 Constable Ram Lakhan Yadav, P.W.-6 Dr. S.H.A. Rizvi, P.W.-7 Sub Inspector Shyamraj Yadav P.W.-8 Dr. R.C. Asthana.” No other witness was recorded on behalf of prosecution. After recording of oral evidence the statement of accused were recorded under section 313 Cr.P.C. Accused denied all the allegations levelled against them and stated that witness Raeesa and Mithan have inimical terms with accused as Raeesa had matrimonial dispute and the family of Raeesa’s in-laws used to visit accused persons therefore he is falsely implicated. Despite the opportunity given to the accused, they did not enter into defense, hence evidence concluded. 4. After hearing the D.G.C. and learned counsel for the accused-appellants, learned trial court reached to the conclusion that the prosecution witnesses of facts have clearly established that three accused persons had caused injuries in question including a lacerated wound on the head, one contusion again on the head, apart from fracture of upper 1/3rd of humerous bone of the left hand and abraded contusion below left shoulder were found. In the opinion of the doctor, the head injuries could have been caused by lathi and danda blows and nothing on record is found to indicate that any supervening or external event had taken place, which was responsible for the death of Mithan except for the injuries which he received in the incident at the hands of three accused persons by the successive lathi blows on a helpless and an unarmed man on the vital part of body. Learned trial court also found that prosecution has succeeded in establishing the guilt of accused and they are liable to be convicted under section 302 read with section 34 IPC, and sentenced them to undergo rigorous imprisonment for life. 5. Aggrieved with the judgment and order dated 30.01.1984, the present appeal is filed on behalf of accused-appellants. 6. Learned counsel for the appellants submitted that the judgment and order passed by the trial court is not sustainable as it is illegal and perverse in the eye of law. The judgment and order passed by learned trial court is not based on evidence available on record and, therefore, is liable to be set-aside. 7. 6. Learned counsel for the appellants submitted that the judgment and order passed by the trial court is not sustainable as it is illegal and perverse in the eye of law. The judgment and order passed by learned trial court is not based on evidence available on record and, therefore, is liable to be set-aside. 7. Learned AGA vehemently oppose the appeal and submitted that the judgment of learned trial court is based on evidence on record and there is eye witness account. It is opined by the doctor that cause of death of deceased is shock and heamorrhage on account of the antemortem injuries. Therefore, the judgment passed by learned trial court is liable to be confirmed. 8. According to the FIR the incident occurred on 30.04.1981 at 5.30 a.m. and FIR was lodged on the same day at about 9.00 p.m. and the distance from place of occurrence, Village Sahinjana is 5 Km. from police station, therefore, the FIR was lodged promptly, injured was taken to the police station in the unconscious condition, who expired due to these injuries on 01.05.1981.There is no delay in lodging of the FIR and therefore, there is no chance to falsely implicate the appellants by the manipulating facts. 9. As per report dated 17.03.2017 of Chief Judicial Magistrate, Lucknow, the appellant nos.1(Sumar) & 2(Mangre) have expired and the case has been abated against them vide order dated 29.03.2017. 10. Before elucidating the evidence produced in the trial court it is desirable to recapitulate them in brief. P.W.-1, complainant, the wife of deceased stated on oath that on the date of incident at about 5.30 a.m. she was in her house and her husband was resting in Khaliyan which was at a very short distance. She came out of her house on hearing the cries of her husband alongwith her relative Sardar. When she reached at the place of occurrence she saw that accused Sumar with kanta, Mangre & Sulaman having lathi in their hands and were assaulting her husband. Shazade also arrived at the place of occurrence on the chaos, when they challenged the accused they took to their heels towards south. Her husband was badly injured and unconscious. She called Mushahab and Sumer etc. and brought her husband to police station on cot and dictated the whole incident. The witness identified her thumb impression on the report and proved it. Her husband was badly injured and unconscious. She called Mushahab and Sumer etc. and brought her husband to police station on cot and dictated the whole incident. The witness identified her thumb impression on the report and proved it. She also stated that they have dispute with Ghoore on account of some land and jewellery, which was resolved by villagers. The witness proved recovery memo of plain earth and blood stained earth. 11. P.W.2 Sardar deposed that he was present in the house of deceased Mithan, who went to Khaliyan to sleep. He reached to the place of occurrence on the cries of Mithan and saw that Sumer having kanta in his hand Mangre having lathi in his hand were assaulting deceased Mithan and the role of exhortation is assigned to Suleman by this witness. When he challenged the appellants they ran away towards to south and when he reached near the injured Mithan, he saw that Mithan was injured and unconscious and they brought him to police station on cot. 12. P.W.-3 Raeesa deposed that on the date of occurrence his father Mithan was sleeping in Khaliyan, her mother and Sardar and the other children were sleeping in home. When she heard the cries of her father she went to the place of occurrence and she saw that accused were escaping from the place of occurrence after killing her father and Sumer had kanta in his hand and Mangre and Suleeman had lathi in their hand. Her father had sustained head injuries. She has also stated that she handed over the clothes of her father to the investigating officer. She also stated that the dispute arose between the deceased and the accused regarding land before this incidence. 13. P.W.-4 S.I. Ujayare Lal deposed that he registered crime no.68, under section 308 IPC. Later on, the case was converted under section 304 IPC. P.W.-4 proved site plan Ex.Ka-2 and recovery memo of plain earth and blood stained earth as Ex.Ka-3. He also stated that he could not record the statement of Mithan as he was already died, but he recorded the statement of his daughter Raeesa on 03.05.1981 and prepared recovery memo of site plan and blood stained clothes of deceased and prepared recovery memo as Ex. Ka-4. He submitted charge sheet against the accused Sumer and Mangre on 21.06.1981, which is Ex.Ka-5 on the record. Ka-4. He submitted charge sheet against the accused Sumer and Mangre on 21.06.1981, which is Ex.Ka-5 on the record. After his transfer S.I. B.B. Singh conducted further investigation and submitted charge sheet against the accused Suleman also as Ex.Ka-6. Blood stained earth and plain earth was sealed and surveyed by P.W.-4, S.I. Ujiyare Lal, which he proved as material exhibit 1 & 2. The Kathari, Shirt and Angaucha were proved as material exhibit nos.3, 4 and 5. 14. P.W.-5 Constable Ram Lakhan Yadav deposed that he was posted as constable clerk on 30.04.1981 and he lodged FIR on the basis oral report of Smt. Makana and proved it as Ex.Ka-1. He also stated that he endorsed the crime on G.D. No.19 at 09.06 on the same day. The witness proved the G.D. as Ex.Ka-7. 15. P.W.-6 Dr. S.H.A. Rizivi, Medical Officer, P.H.C. Sarojani Nagar, Lucknow, stated on oath that the he was posted as Emergency Medical officer in Balrampur Hospital and he medically examined the injured and found that he was very serious, there was gasping in breathing. Iris was half dilated and he was unconscious, therefore, after his admission in emergency ward Neuro Surgeon was immediately called to attend him. P.W.-6 proved injury report as Ex.Ka.-8. 16. P.W.-7 stated on oath that he was posted at police station Vajeer Gang and he is a witness of inquest. The witness conducted postmortem and prepared inquest report Ex.Ka-10, Naksha Lash Ex.Ka-11, Challan Lash, letter to C.M.O. Ex.Ka-12 and letter to R.I. He also stated that he prepared injury report and proved it as Ex.Ka-10. 17. P.W.-8 Dr. R.C. Asthna, Medical Officer Lucknow stated on oath that he conducted autopsy on the body of deceased on 01.05.1981 at 4.00 p.m., who was brought and identify by constable CP-1025, Ramsuresh, who brought the dead body in sealed condition. Autopsy was conducted by Dr. P.W.-8 and following antemortem injuries were found on his body:- “1. Hospital dressing present over skull and a bandage with a card board on Lt arm. 2. L.W 5 cm. x 2 cm. x Bone deep 9 cm. above Rt eyebrow over skull transverse. 3. Contusion 8 cm. x 5 cm. on Rt side of head 1.5 cm. above Rt ear. 4. Abd cont 11 cm x 6 cm over Lt arm. 8 cm. below Lt shoulder Lt. Humerous bone is fractured at upper 1/3rd. 2. L.W 5 cm. x 2 cm. x Bone deep 9 cm. above Rt eyebrow over skull transverse. 3. Contusion 8 cm. x 5 cm. on Rt side of head 1.5 cm. above Rt ear. 4. Abd cont 11 cm x 6 cm over Lt arm. 8 cm. below Lt shoulder Lt. Humerous bone is fractured at upper 1/3rd. Death as a result of head injury (haemorrhage and shock).” 18. In the statement under section 313 Cr.P.C., accused Suleman stated that Raeesa had matrimonial dispute with her husband and the family of her husband used to come to his house, therefore, he is falsely implicated in the case. 19. P.W.-1 Makana, P.W.-2 Sardar are the witnesses of fact who proved that they themselves saw that accused were assaulting the deceased by lathi and kanta and when they challenged the accused they fled from the place of occurrence. P.W.8, Dr. R.C. Asthana found five injuries on the corpse of deceased and one of the injury was found on the right side of scalp, which was congested and a large quantity of clotted blood was detected therein. The doctor also found four ounce semi digested food in the abdomen of the deceased., which is proved by P.W.-8 as Ex.Ka-14. After the autopsy, doctor concluded that cause of death of deceased was shock and haemorrhage. 20. On the basis of autopsy report and ante-mortem injuries sustained by the deceased, it can be concluded that the death of deceased was caused by lathi and danda, but learned trial judge did not analyze the evidence of witnesses thoroughly and minutely. In the FIR general role was assigned to all the three appellants, but P.W.-1 stated that Suleman has simple lathi in his hand. All the three persons were assaulting her husband, however P.W.-2 Sardar has stated in his examination-in-chief that Sumer and Mangre were assaulting the deceased by kanta and lathi, respectively, but Suleman was wandering and exhorting, Sumer and Mangre. P.W.-2 did not support the statement of P.W.-1 regarding the assault by Suleman. Prosecution relied upon this star witness, as he was staying in the house of deceased and complainant P.W.-1 and Shazade reached at the place of occurrence with this witness. There is sharp contradictions in the statements of P.W.-1 and P.W.-2 on this point, whether Suleman assaulted deceased or not, that too in examination-in-chief. 21. Prosecution relied upon this star witness, as he was staying in the house of deceased and complainant P.W.-1 and Shazade reached at the place of occurrence with this witness. There is sharp contradictions in the statements of P.W.-1 and P.W.-2 on this point, whether Suleman assaulted deceased or not, that too in examination-in-chief. 21. P.W.-2 did not attributed the role of assaulting or beating the deceased Mithan to Suleman. There is also contradictions on the point that Shazade also reached at the place of occurrence at the time of incident, but according to P.W.-2, Shazade and Raeesa reached at the place of occurrence, when the accused fled away from the place of occurrence. Therefore, the presence of Shazade and Raeesa at the time of occurrence is also suspicious. P.W.-3 Raeesa, the daughter of deceased stated in cross examination that that she lives in her matrimonial house and she came therefrom on the date of incident. It is admitted that Raeesa was earlier married and it is her second marriage with the son of Wali Mohammad and she was living in her parental home since last one year. 22. It is also pertinent to mention here that P.W.-4 Ujiyare Lal stated in his statement that he submitted charge sheet against the accused Sumer and Mangre only. Later on after his transfer S.I. B.B. Singh conducted further investigation who submitted charge sheet against the accused Suleman also. If there was any cogent evidence during investigation against Suleman, charge sheet would have been filed against him alongwith accused Sumer and Mangre. 23. Learned counsel for the appellants draw our attention to the statement of P.W.-4 who stated that P.W.-3 Raeesa stated in her statement under section 161 Cr.P.C. that she has dispute with her in-laws and she reside with her father. The statement is proved as Ex.Kha-1 by P.W.-4. It is also argued by learned counsel for the appellants that Raeesa deposed in the court that she handed over the clothes of her father to the investigating officer on the next day of incident, however, investigating officer stated in his statement that he reached at the place of occurrence on the next day at about 10.00 a.m., but he did find Raeesa and he was informed that she has gone to her relatives. It is pertinent to mention here that Suleman stated in his statement under section 313 Cr.P.C. that he is falsely implicated in the case as he used to go to the in-laws of Raeesa, the daughter of deceased and deceased and Raeesa have a stringent relationship with her in-law, therefore, they did not like their proximity with her in-laws, hence they are falsely implicated in the case. 24. Thus from the evidence on record it transpires that however Mithan, the husband of Makana was injured in the incident and died due to the injuries sustained by him during the incident, but there is no cogent evidence against accused Suleman, as the role assigned to him is only of exhortation and the accused specifically stated in 313 Cr.P.C. that he is falsely implicated in the case by complainant. 25. Learned trial court did not pay heed to the statement of P.W.-2 who is said to be eye witness of the case and is prominent and star witness of prosecution and no allegation of assault is made against the accused Suleman by this witness. Learned trial court did not discuss the statement of accused Suleman recorded under section 313 Cr.P.C. Learned trial court convicted the accused saying that there are contradictions in the statements of P.W.-2 Sardar and P.W.-3 Raeesa, regarding the relationship of Sardar with Makana, which are trivial in nature. Learned trial court believed the statement of P.W.-2 Sardar, who is said to have staying in the house of P.W.-2 on this fateful night, but could not appreciate in his examination-in-chief regarding the role of Sulamen, in which he did not attributed any role to him except exhortation. Learned trial court did not consider relevent aspects and contradictions and came to the conclusion on the basis of autopsy report. 26. Having regard to the facts and circumstances of the case and keeping in view the nature of offence, evidences, complicity of accused, severity of punishment and for all the aforesaid reasons the court is of the opinion that prosecution has failed to establish the complicity of appellant Suleman in this crime, for which he was being tried. Therefore, we are of the considered opinion that prosecution could not establish the case against the appellant Suleman, hence he is held not guility of the offence for which he was being tried and convicted. 27. Therefore, we are of the considered opinion that prosecution could not establish the case against the appellant Suleman, hence he is held not guility of the offence for which he was being tried and convicted. 27. The Judgment of trial court dated 30.01.1984 convicting and sentencing the appellant under the various provisions mentioned above, is set-aside with reference to appellant Suleman. The present Criminal Appeal No.89 of 1984, in Session Trial No.508 of 1982 (State Vs. Sumer and others), under sections 302 IPC read with section 34 IPC, Police Station Mall, District Lucknow, is liable to be allowed with reference to appelalnt Suleman and is accordingly allowed. 28. Appellant Suleman is on bail, he need not to surrender. Bail bonds and personal bonds of accused Suleman are discharged. Case property, if any, be destroyed after the period of appeal. Having been acquitted by this Court in the above noted case, the appellant shall furnish bail bond with sureties to the satisfaction of the court concerned in terms of the provision of Section 437-A Cr.P.C. 29. Let the copy of judgment and order as well as the records of trial court be transmitted to the trial court concerned forthwith for necessary information and compliance of this order.