Judgment : Sanjiv Kumar, J. 1. This criminal appeal has been preferred by the appellants, namely, Rahishe @ Rahise, Chhikani, Bakuni all sons of Munesara and Nazir son of Mahadev, all residents of Village Kesaria, Police Station Saini, District Allahabad, against the judgment and order dated 21.03.1990, passed by the Court of 5 th Additional Sessions Judge, Allahabad, in Session Trial No.308 of 1986, under Section 302/34 Indian Penal Code (in short I.P.C.), Police Station Kokhraj, District Allahabad. 2. By the impugned judgment and order, the appellants, Rahishe @ Rahise, Chhikani, Bakuni and Nazir have been convicted for offence punishable under Section 302/34 I.P.C. and sentenced to undergo imprisonment for life. 3. Feeling aggrieved by the impugned judgment and order, this appeal has been filed by all the four convicts. During the pendency of this criminal appeal, appellant No. 1, 2 and 4, namely, Rahishe @ Rahise, Chhikani and Nazir, have died, and the appeal against them stands abated vide order dated 04.11.2025. Therefore, the appeal has been heard in respect of the surviving appellant, Bakuni alone. 4. The brief facts of the prosecution case are that the informant, Babani, son of Kharsen, resident of Todi ka Purwa resident of Nevadia, Police Station Kokhraj, District Allahabad, gave an oral information at Police Station Kokhraj stating that Kallu was his real brother. Kallu’s daughter was married to Nazir’s son. There was animosity between the informant and Munesara, Nazir’s brother, for the last 20-25 years, which the informant had forgotten, and both parties had now become relatives. It is alleged that due to the old enmity, the accused, Chhikani, Rahise and Bakuni, in furtherance of their common intention, enticed the informant’s brother Kallu while they were in the market, to go along with them. Thereafter, the informant, his brother, and Heera proceeded with them towards Jamlamau, and when they reached in front of village Sanjhagarh at about 9-10 p.m., the accused quarrelled with Kallu bringing up issues about the old enmity. As the dispute escalated they assaulted Kallu with sticks (lathi) and (danda). When the informant and Heera tried to intervene, the accused chased them away. The informant and Heera went over to the latter’s house, believing that since the accused were their relatives, they would spare Kallu after a minor assault. As the dispute escalated they assaulted Kallu with sticks (lathi) and (danda). When the informant and Heera tried to intervene, the accused chased them away. The informant and Heera went over to the latter’s house, believing that since the accused were their relatives, they would spare Kallu after a minor assault. However, in the morning, when they went there to take account of the situation, they found the informant’s brother Kallu lying dead at the place where the accused had battered him. Upon this oral information, an FIR was lodged giving rise to Case Crime No.85 of 1985, under Section 302 I.P.C., Police Station Kokhraj, District Allahabad on 23.05.1985 at 10.25 a.m., against Rahise @ Rahish, Chhikani, Bakuni and Nazir. 5. After registration of the FIR, investigation commenced. The Investigating Officer reached the place of occurrence and collected plain earth and blood-stained earth from the spot, securing it in a sealed box and prepared a recovery memo (Ext. Ka-10). The inquest was held and a report thereof was prepared. An autopsy followed. According to the post- mortem report, the deceased sustained seven injuries, including contusions, lacerated wounds, and incised wounds on different parts of the body, and in the opinion of the doctor, the cause of death was ‘shock’ and ‘coma’ as a result of the ante-mortem injuries. The Investigating Officer also recorded the statements of witnesses and inspected the place of occurrence. He prepared the site-plan (Ext. Ka-9). 6. After completion of investigation, the Investigating Officer submitted a charge-sheet against all the four accused under Section 302 I.P.C. before the learned Magistrate concerned. The learned Magistrate took cognizance and summoned the accused. The accused appeared before the Magistrate, and the Magistrate furnished them copies of the relevant prosecution papers under Section 207 Cr.P.C. He, thereafter, committed the case to the Court of Sessions for trial vide order dated 04.07.1986. The Sessions Court framed charges under Section 302/34 I.P.C. against all four accused, to which they pleaded not guilty and claimed to be tried. 7. The prosecution has examined five witnesses in support of the prosecution case, namely, P.W.1, Batuni (informant), P.W.2, Sudisht Singh (Head Constable), P.W.3, Bharat Singh (Constable), P.W.4, R.N. Singh (Inspector) and P.W.5, Dr. N.K. Saxena. 8. Out of them, P.W.1 Batuni is the informant and an eye-witness of the incident. He has stated that he knows all the accused. 7. The prosecution has examined five witnesses in support of the prosecution case, namely, P.W.1, Batuni (informant), P.W.2, Sudisht Singh (Head Constable), P.W.3, Bharat Singh (Constable), P.W.4, R.N. Singh (Inspector) and P.W.5, Dr. N.K. Saxena. 8. Out of them, P.W.1 Batuni is the informant and an eye-witness of the incident. He has stated that he knows all the accused. Nazir’s father Mahadev, and Chhikani, Raheesa and Bakuni’s father Muneshwar were real brothers, both of whom have passed away. Muneshwar was murdered when the informant was very young, and in that case some accused were acquitted. The sons of Muneshwar suspected that the informant’s father had a hand in Muneshwar’s murder. However, when they grew up, they harboured no animosity against Nazir or the others so much so that the informant’s brother Kallu married his daughter to Nazir’s son. He further said that they are engaged in the profession of ear wax cleaning and are nomadic. They leave their homes during the month of Kunwar ( Hindi calendar month) and return in the month of Jyeshtha (another Hindi calendar month), staying at different places in the meantime. At the time of the incident, his family had set up camp in village Shindhya, and the accused were camping in village, Jamalamau. On the date of the incident, the informant had gone to Bharwai market alongwith Kallu and Heera, where they met the accused. All the four accused told Kallu to accompany them to their dera. Kallu was not interested, but upon their insistence, the informant, Kallu and Heera accompanied them. When they reached in front of village Jhanjhagarh at about 10:00 p.m., the accused struck conversation with Kallu regarding Muneshwar’s death, and as passions escalated, all the four accused battered Kallu with sticks (lathi) and (danda). The informant and Heera objected, but the accused chased them away. The informant and Heera ran away from the spot and stayed at Heera’s dera in Gulamipur, thinking that since the accused were relatives, they would spare Kallu after giving him one or two lathi blows. In the morning, when the informant went there to ascertain the situation, he found Kallu’s dead body lying at the spot. Thereafter, he went to the Police Station and lodged a report. 9 . In his cross-examination, P.W.1 has stated that he did not raise any alarm during the assault because he ran away from the place of occurrence. In the morning, when the informant went there to ascertain the situation, he found Kallu’s dead body lying at the spot. Thereafter, he went to the Police Station and lodged a report. 9 . In his cross-examination, P.W.1 has stated that he did not raise any alarm during the assault because he ran away from the place of occurrence. He further said that the Bharwari Police Outpost is about one and a half miles away from the place of occurrence, but he did not give any information there. Instead, he went to Gulamipur, which is about four miles away from the place of occurrence, and informed the Pradhan of the village. He reached Gulamipur within an hour and asked Mewa Lal, the Pradhan, to accompany him to the place of occurrence. He has further said that he did not go to the place of occurrence during the night but went there the next morning at about 9:00 a.m. because he never anticipated that they would murder his brother. He has also said that Kallu did not raise alarm and the informant did not sustain any injury. He did not try to save Kallu because he was not carrying a lathi or danda. 10. P.W.2, Sudisht Singh (Head Constable), is the scribe of the chik FIR. He has stated that he prepared the chik FIR on the basis of the verbal account of the informant, and, thereafter, entered its gist in G.D. No. 23 on the same day. He has proved the chik FIR (Ext. Ka-1) and the copy of G.D. No. 23 (Ext. Ka-3). He has further said that no cognizable or non-cognizable report was entered on 23.05.1985 between 10:25 a.m. and 10:25 p.m. 11. P.W.3 Bharat Singh (Constable) is also a formal witness, who conveyed the dead body of the deceased Kallu from the place where the inquest was held to the mortuary for post-mortem examination. 12. P.W.4 R.N. Singh (Inspector) is the Investigating Officer of the case. He has deposed regarding the investigation conducted by him and stated that the written report was lodged in his presence. Thereafter, he proceeded to the place of occurrence where the inquest was done under his supervision and an inquest report prepared. He has proved the inquest report as Ext. Ka-4 and the connected papers, namely photo- nash, challan-nash, letter to the C.M.O., and letter to the R.I., as Ext. Thereafter, he proceeded to the place of occurrence where the inquest was done under his supervision and an inquest report prepared. He has proved the inquest report as Ext. Ka-4 and the connected papers, namely photo- nash, challan-nash, letter to the C.M.O., and letter to the R.I., as Ext. Ka- 5 to Ext. Ka-8, respectively. He has further said that he searched for the accused and arrested Bakuni on the same day, while the remaining accused could not be found at that time. He recorded the statements of the informant and other witnesses, inspected the place of occurrence on the same day, and prepared the site-plan, which he proved as Ext. Ka-9. He also collected samples of blood-stained earth and plain earth from the spot, kept them in separate boxes, and prepared the recovery memo, which he proved as Ext. Ka-10. On 25.08.1985, he arrested the remaining accused and recorded their statements. Upon completion of the investigation, he submitted the charge-sheet before the Court on 31.05.1985, which he proved as Ext. Ka-11. 13. In his cross-examination, P.W.4 has stated that the distance and direction from the place of occurrence to the police station are not mentioned in the inquest report. In the challan nash, the distance is shown as 4 km, but the direction is not mentioned. In the chik FIR, this distance is mentioned as 3 km. 14. P.W.-5, Dr. N.K. Saxena, conducted the post-mortem examination upon the deceased’s cadaver. He has said that on 24.05.1985, he was posted as the Senior Medical Officer, Tej Bahadur Sapru Hospital, Allahabad, and on that day, at about 5:30 p.m., he conducted the post- mortem examination of the deceased. The deceased was about 50 years old and had died approximately one and a half to two days earlier. He found the following ante-mortem injuries on the body: “(i) Contusion measuring 6 cm × 5 cm on the back of the left forearm. (ii) Lacerated wound measuring 7 cm × 4 cm, bone deep, on the left side of the chin; the mandible bone was fractured. (iii) Lacerated wound measuring 3 cm × 1 cm, bone deep, just above injury no. 2, involving fracture of the lower mandible. (iv) Lacerated wound measuring 2 cm × 2 cm, bone deep, above the nose. (v) Lacerated wound measuring 5 cm × 2 cm, bone deep, above the left eyebrow; the underlying bone was fractured. (iii) Lacerated wound measuring 3 cm × 1 cm, bone deep, just above injury no. 2, involving fracture of the lower mandible. (iv) Lacerated wound measuring 2 cm × 2 cm, bone deep, above the nose. (v) Lacerated wound measuring 5 cm × 2 cm, bone deep, above the left eyebrow; the underlying bone was fractured. (vi) Lacerated wound measuring 4 cm × 2 cm, bone deep, on the left side of the head 10 cm above the left ear. (vii) Contusion measuring 9 cm × 6 cm on the left forehead.” In the internal examination, he found that the scalp bone was fractured under injury nos. 4 and 5. There were fractures of the anterior and middle cranial fossa. In the opinion of the doctor, the cause of death was shock and unconsciousness as a result of the ante-mortem injuries. He proved the post-mortem report as Ext. Ka-12 and stated that the death could have occurred on 22.05.1985 between 9:00 and 10:00 p.m. Injury no. 6 could have been caused by falling on any pointed hard object. All the injuries except injury no. 6 could have been caused by lathi or danda. Injury no. 6 was bone-deep and, in the ordinary course, could have been caused by a sharp-edged weapon. He received the papers on 24.05.1985 at 4:30 p.m., and the dead body had reached the mortuary on the same day at 9:00 a.m. Injury no. 6 could also have been caused by falling on a sharp-edged brick. 15. The prosecution has produced following documentary evidence in support of its case i.e. Ext. Ka-1, FIR, Ext. Ka-2, G.D. No.17, Ext. Ka-3, G.D. No.23, Ext. Ka-4, inquest report, Ext. Ka-5, photo nash, Ext. Ka-6 challan nash, Ext. Ka-7 and Ext. Ka-8 two letters to C.M.O., Ext. Ka-9, site plan, Ext. Ka-10, recovery memo of bloodstained and plain soil, Ext. Ka-11, charge-sheet and Ext. Ka-12, postmortem report. 16. After closure of prosecution evidence, the statements of accused were recorded under Section 313 Cr.P.C., wherein they denied the prosecution case and stated that false evidence had been adduced against them and that the case had been lodged against them due to enmity. The accused did not produce any evidence in their defence. 17. Ka-12, postmortem report. 16. After closure of prosecution evidence, the statements of accused were recorded under Section 313 Cr.P.C., wherein they denied the prosecution case and stated that false evidence had been adduced against them and that the case had been lodged against them due to enmity. The accused did not produce any evidence in their defence. 17. The learned Trial Court, after hearing both the parties and examining the evidence on record, came to the conclusion that the prosecution had been able to prove its case beyond reasonable doubt. It was observed by the Trial Court that the conduct of P.W.1, Batuni was natural and his explanation for not reporting the matter to the Police and coming back to the place of occurrence the next morning, is reliable. The Trial Court also observed that the presence of P.W.1 Batuni should not be disbelieved on the ground that he fled the spot. As a result, all the appellants were held guilty and convicted for the offence punishable under Section 302 read with Section 34 I.P.C., and sentenced to undergo imprisonment for life. 18. Heard Mr. Ram Awadh Mishra, learned Counsel for the appellants, Mr. Ghanshyam Kumar, learned Additional Government Advocate-I on behalf of the State and perused the record. 19. It is argued on behalf of the appellants that it was a blind murder and nobody witnessed the incident. The appellants have been falsely implicated in this case due to enmity. It is further submitted that the presence of P.W.1, Batuni, at the place of occurrence, is highly doubtful. He is a relative of the deceased and an interested witness. His conduct is very unnatural, and, therefore, his testimony cannot be relied upon. 20. On the other hand, it is submitted on behalf of the State that the prosecution has proved its case beyond reasonable doubt. P.W.1, Batuni is an eye-witness of the incident, before whom the appellants had taken away the deceased and battered him. When the informant objected, he was chased by the appellants, whereupon he fled the spot. On the next day, the dead body of the deceased was found at the same place. Therefore, it is the appellants, who without doubt murdered the deceased. It is further submitted that the ocular testimony is supported by the medical evidence. Hence, this appeal has no force and is liable to be dismissed. 21. On the next day, the dead body of the deceased was found at the same place. Therefore, it is the appellants, who without doubt murdered the deceased. It is further submitted that the ocular testimony is supported by the medical evidence. Hence, this appeal has no force and is liable to be dismissed. 21. In a criminal trial, the burden of proof always lies upon the prosecution to prove their case beyond reasonable doubt. In the instant case the first part of incident is alleged to have happened before the informant. There is nobody who saw the appellants committing the murder of the deceased. According to the prosecution, P.W.1, Batuni saw only the earlier part of the incident where Kallu was assaulted with sticks (lathi and danda) by the appellants, and the appellants did not commit the murder in his presence. It is not in dispute that the deceased, Kallu, and the informant, Batuni, are real brothers. Therefore, P.W.-1, Batuni is relative and an interested witness. With regard to witnesses, who are relatives of the victim, the law is well settled that their testimony cannot be discarded on the sole basis that they are relatives and no good witnesses. But, it has to be examined carefully. 22. In the present case, the place of occurrence is not challenged by the defence. In this case, the incident took place on the road near village Sajhagarh. According to the post-mortem report, there were seven ante- mortem injuries on the body of the deceased, consisting of contusions and lacerated wounds. On internal examination, fractures of the skull bone and the middle cranial fossa were found. The cause of death was shock and coma resulting from ante-mortem injuries. Therefore, it is evident that the death was not natural and that the deceased was murdered. The next question is whether the appellants were the persons, who committed the murder of the deceased. 23. To prove this, the prosecution has produced only one witness of fact, namely P.W.2, Batuni, the brother of the deceased. In view of the statement of P.W.1, Batuni, his testimony is not trustworthy, rather it is unreliable. According to P.W.1, on the fateful night when he along with deceased Kallu, and Heera were going along with the appellants and reached near village, Janjhangarh at about 10:00 p.m., appellants quarrelled with the deceased regarding his father, Muneshara’s murder. In view of the statement of P.W.1, Batuni, his testimony is not trustworthy, rather it is unreliable. According to P.W.1, on the fateful night when he along with deceased Kallu, and Heera were going along with the appellants and reached near village, Janjhangarh at about 10:00 p.m., appellants quarrelled with the deceased regarding his father, Muneshara’s murder. Thereafter, all the four appellants beat him up with sticks (lathi and danda). When the informant and Heera objected, the appellants chased them. They ran and reached at Heera’s dera in Gulamipur. He said that he reached the place of occurrence the next day at about 9:00 a.m. and saw the deceased lying dead. It is highly unnatural for the informant that after witnessing the appellants, beating his brother, Kallu, he ran away and stayed the entire night at the dera in Gulamipur with Heera and made no effort to find out what happened to his brother. It has come in his statement that there was a police outpost at Bharwai about one and a half miles away from the place of occurrence. He has admitted that he did not go to the Police outpost to give information that his brother was being beaten. It has also come in his evidence that instead of going to the Police outpost, he went to Gulamipur, the distance of which was more than double, being about four miles away from the place of occurrence. He has further said that in Gulamipur, he informed Mewa Lal, village Pradhan, about the incident and asked him to go there. There is no evidence on record that either of them bothered to go to the place where the deceased was being assaulted. On the other hand, if he suspected that it was a serious matter then he should have informed the Police or insisted the Pradhan to call help or garnered the support of some people and returned to the place of occurrence. Here, it is also relevant that according to the informant, the appellants asked the deceased to accompany them, then there was no reason for the informant and Heera to go with them. Why did informant and Heera go with them is not disclosed. Here, it is also relevant that according to the informant, the appellants asked the deceased to accompany them, then there was no reason for the informant and Heera to go with them. Why did informant and Heera go with them is not disclosed. If the alleged incident had actually happened before the informant, then it is highly unlikely that he would run away and stay the entire night at Gulamipur without inquiring about the whereabouts of his brother. A natural reaction for him would have been to wait for some time for the return of his brother Kallu, and if he did not return within a reasonable time, the informant would have gone to the place of occurrence to know what had actually happened to him. The above conduct of the informant raises serious doubt about his presence at the place of occurrence. 24. It has also come in the evidence of P.W.1, Batuni, that he did not try to save his brother, Kallu, when the accused commenced assault. It is highly unlikely that he would not have come forward to defend his brother, if there. It has further come in his evidence that the informant did not receive any injury in the incident nor raised alarm. When the informant and the deceased were real brothers and the appellants had suspicion that their father, Muneshara, was killed by the deceased’s father (who was also the father of the informant) then it is quite surprising that the appellants would take revenge only upon Kallu and spare the informant, his real brother. 25. In Hem Raj v State of Haryana 2005 (10) SCC 614 , the Supreme Court has held that non-examination of independent witness by itself may not give rise to an adverse inference against the prosecution. However, when the evidence of the eye-witnesses raises serious doubt about their presence at the time of occurrence, the unexplained omission to examine independent witnesses would assume significance. The authority squarely applies to the present case. In the present case there was Heera, who according to prosecution, was an eye-witness and was there with the informant and the deceased at the place of occurrence. The prosecution has not produced him in evidence and discharged him from testifying in Court. As the evidence of P.W.1, Batuni is found not reliable and the prosecution has not explained why the other eye-witness was not examined. The prosecution has not produced him in evidence and discharged him from testifying in Court. As the evidence of P.W.1, Batuni is found not reliable and the prosecution has not explained why the other eye-witness was not examined. This aspect of the matter assumes significance and lends to an adverse inference about the prosecution case. 26. With regard to motive for the appellants to commit the murder, it is submitted on behalf of the State that the appellants had harboured a grudge against the deceased on account of suspecting that the deceased’s father was involved in the murder of their father, Muneshra. This served as the motive for them to commit the crime. The above contention on behalf of State has no force. According to P.W.-1, Batuni, Muneshara was murdered long ago, and his sons, that is, the appellants Chhikani, Rahise and Bakuni, suspected that he had been murdered by the deceased’s father. In his cross-examination, he has spoken contrarywise and said that Muneshara’s murder was not discussed with his sons and the relations between them have been cordial. He has also said that when they grew up, there was no such animosity between the parties. He has further said that even his brother, Kallu, had married his daughter to the son of the appellant, Nazir. If this part of the informant’s testimony were accepted, there is no reason to believe that there was any enmity between parties and the appellants would raise the old issue of their father’s murder at the time of the incident and assault Kallu, particularly when the latter had married his daughter in the family of appellant, Nazir, and ultimately kill him. It has also come in his evidence that before the alleged incident, there was no quarrel or dispute between parties regarding the murder of Muneshara. Thus, the motive alleged to commit murder is very weak. Beside this, from the evidence on record there is no immediate cause or motive which could have prompted the accused to commit such a crime. Therefore, on this account also, the prosecution case is weak and not reliable. 27. In view of the above discussion, the presence of P.W.1, Batuni, at the place of occurrence, is highly doubtful. Therefore, there is no reliable evidence that the deceased was last seen with the appellants before his murder. Therefore, on this account also, the prosecution case is weak and not reliable. 27. In view of the above discussion, the presence of P.W.1, Batuni, at the place of occurrence, is highly doubtful. Therefore, there is no reliable evidence that the deceased was last seen with the appellants before his murder. It appears that Kallu was murdered by someone else at an unknown time. It is a blind murder, and the appellants have been falsely implicated in this case. According to the prosecution, the incident occurred at a lonely place where there is no habitation nearby. It was in the dark of night that Kallu was murdered. 28. In view of the above discussion, we come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt and the Trial Court failed to appreciate the evidence on record correctly and findings of guilt were recorded by the Trial Court on surmises and conjectures and on incorrect appreciation of evidence. Thus, the impugned judgment and order of conviction and sentence passed by 5th Additional Sessions Judge, Allahabad in Sessions Trial No. 308/86 is liable to be set aside. Therefore, the instant criminal appeal is allowed. The impugned judgment and order dated 21.03.1990 passed by the Trial Court is set aside and the surviving appellant, Bakuni acquitted of the offence punishable under Section 302/34 IPC. 29. The appellant No.3, Bakuni is in jail. He is directed to be released forthwith, if not wanted in any other case. 30. Let a copy of this order be sent to the trial Court concerned alongwith the Trial Court record for information and necessary compliance.