- (1.) A. B. Srivastava, J. Against their conviction for the offence under Section 302 read with Section 34 of the I. P. C. , recorded by the III Additional Sessions Judge, Barabanki, vide his judgment and order dated 26-3-1984, and sentence of imprisonment for life awarded thereunder, the appellants, abovenamed, have preferred this appeal.
(2.) THE prosecution story, as unfolded in the First Information Report, and the version of the eye- witnesses, is that Vishnu Dutt (acquitted by the trial Court), who is Pradhan of Raria, a hamlet of village Barolia, under Police Station Fatehpur, district Barabanki, to which place deceased Shriram and his brother informant Sone Lal (P. W. 1), also belong, was inimical towards Shriram on account of the dispute regarding election and also because the deceased has instrumental in getting complaints made by the villagers regarding misappropriation against Vishnu Dutt, Appellant Munna is the son of Vishnu Dutt, whereas appellants Farooq, Jagat Pal Secretary, alias C. T. are the friends and helpers of Munna. THE deceased Shriram lived along with his family in Raria and looked after his cultivation as well as that of Sone Lal, who is a lawyer by profession, residing in the city of Barabanki, Sone Lal used to go to his village on Saturdays and various holidays to look after his cultivation and stay there. Ram Chandra (P. W. 3), the son of Shriram, resided in Lucknow in connection with his law studies and visited Raria in holidays. Out of the five chaks of Sone Lal, one is situated towards west of the village in the locality known as Marhi. Adjoining towards west of the same is the chak of Shriram Pasi in which murder of Shriram is alleged to have been committed. At a distance of about 60-70 steps towards east of said place is the chak of Ramdeo. There is situated a 'khalihan' towards east of the chak aforesaid of Shriram, intervened by some 'parti' land. At the time when the incident took place paddy crop was sown in the southern portion of the chak of the informant and also in the chak of Shriram. 4. 23-8-1982, the day of incident was a Monday. Informant Sone Lal, who had gone to his village on the preceding Saturday, was present in the village on 23-8-1982 also, similarly, present was the (P. W. 3), Ram Chandra. On the said day the deceased Shriram along with Ram Chandra had gone to the chak of Sone Lal in the morning for weeding grass from the paddy crop. At about 11. 30 a. m. Sone Lal went to the said chak with drinking water for these the persons. After they consumed the water Sone Lal started for his home. At a distance of about 50-60 steps from the said chak, he met Ram Deo near the 'khalihan' and they both started talking. At about the same time, the four accused-appel lants came to the chak where Shriram and Ram Chandra were engaged in weeding grass. Appellant Farooq was armed with a country-made pistol, whereas Jagat Pal, Secretary and Munna with 'bankas'. Seeing them, Shriram gave a call, saying that the accused- appellants were approaching with weapons, to his son Ram Chandra to run away. While Ram Chandra ran towards North, and thereafter East in the direction where Sone Lal was standing Shriram ran straight towards east. As soon as he reached in the adjoining field of Shriram Pasi, he was accosted by the accused-appellants near its western 'mend/appel lants Farooq caught deceased Shriram by his waist and the three other appellants started giving blows with their 'bankas' to the deceased. Hearing the alarm raised and the shouts of the deceased, Sone Lal (P. W. 1), Ramdeo and Mansha Ram (P. W. 2), came running from 'khalihan' towards the scene of occurrence. Seeing them approaching near the place of occurrence, appellant Farooq, pointing his pistol, threatened to shoot them, due to which, these people could not reach near the deceased and all the four accused-appellants ran away with their weapons, leaving deceased Shriram badly injured, fallen on the ground, profeusely bleeding. On reaching near him, the informant and others found Shriram dead. A country-made pistol was also found lying near the dead body. Shortly after the incident, the informant Sone Lal Verma proceeded to the Police Station Fatehpur, district Barabanki, situated at a distance of about 81/2 Km. from the place of occurrence, where he lodged a written report, Ex. Ka-1, regarding the incident at 5 p. m. , the same day, naming the four accused-appellants. 5. Investigation of the case was taken up by S. I. Dashrath Singh (P. W. 2), then Station Officer, Police Station, Fatehpur. Reaching the place of occurrence, he made an inquest of the dead-body of Shriram and prepared the relevant documents and also got the dead body sealed and sent the same for post- mortem examination. He also took in possession from the spot blood-stained and unstained earth as well as a country-made pistol, found lying near the dead-body, and prepared their memos. 6. On 24-8-1982 he inspected the place of occurrence and prepared site plan, Ex. Ka-8 and also recorded the statements of the witnesses. 7. The post-mortem examination of the dead body of Shriram was conducted by Dr. M. A. R. Siddiqui (P. W. 5) on 24-8-1982 at 3. 30 p. m. and the following ante-mortem injuries were found. (1) Incised wound 18 cm. x 10 cm. x vertebra deep on left side neck cutting 3rd cervical vertebrae, Oesophagus and trachea and great vessels of neck along with accompanying structure of neck. (2) Incised wound 5 cm. x 1 cm. x bone deep transverse on the back of head occipital region. (3) Incised wound 6 cm. x 1 cm. x bone deep entere posterior of vertex slightly oblique cutting both parietal bones. (4) Incised wound 4 cm. x 1 cm. x bone deep on right side top of head oblique. (5) Incised wound 10 cm. x 3 cm. x muscle deep on back of right shoulder anterior posterior. (6) Incised wound 12 crn. x 3 cm. x muscle deep on right side back, 10 cm. below injury No. traverse. (7) Incised wound 15 cm. x 7 cm. x muscle deep on right side back transverse, 1 cm. middle to injury No. 6. (8) Incised wound 10 cm. x 5 cm. x muscle deep on left side back transverse 5 cm. below injury No. 7. JIC] Farooq and Ors. v. State of U. P. 1459 (9) Contusion 5 cm. x 4 cm. top of left shoulder outer side. (10) Contused swelling left side 6 in area 10 cm. x 10 cm. (11) Incised wound 4 cm. x 1 cm. x bone deep on right shoulder outer l/3rd cutting right clavicle in upper part. (12) Incised wound 1 cm. x 0. 2 cm. x bone deep on left thumb, back and middle. 8. Death of deceased Shriram was found to have been caused due to shock and heaemorrhage as a result of the aforesaid ante-mortem injuries. 9. The Investigating Officer completed the investigation after recording the state ments of the witnesses, during the course of which complicity of Vishnu Dutt in this crime also came to light as conspirator. He also interrogated the accused persons, who sur rendered in the Court, and thereafter laid charge-sheet, which led to committal of the appellants before the Court of sessions. 10. All the accused-appellants pleaded not guilty to the charge under Section 302/34 I. P. C. framed against them by the trial Court and pleaded that they have been falsely implicated due to enmity and group rivalry. According to the defence contention deceased Shriram was done to death by some unknown assailants early in the morning of 23-8-1982, information of which reached his brother informant Sone Lal Verma at Barabanki and son Ram Chandra Verma at Lucknow, who thereafter arrived in their village in the afternoon and in consultation with the people of their group, lodged F. I. R. , falsely implicating the appellants. 11. On behalf of the defence there was examined (D. W. I), Mohd, Shakir Khan, Lekhpal of Tfehsil Nawabganj to state that on 23-8-1982 he had appeared as witness in Cases No. 85 of 1982, Goan Sabha v. Mullu and 23 of 1986, Goan Sabha v. Mahadeo, both under Section 122-B in the Court of Tkhsildar, Nawabganj, and was cross-examined by informant Sone Lal Verma (P. W. 1 ). The (D. W. 2) Shriram Pasi, the person in whose field the deceased was murdered, stated that while he was going to ease himself in the morning at about 6-7 a. m. , he heard the noise that the deceased Shriram has been murdered in his field. On going there he found the dead body of Shriram lying in a pool of blood and a country-made pistol also was lying near the dead body. 12. On behalf of the prosecution there were examined in this case eight witnesses in all. Out of these (P. W. 1), Sone Lal Verma the first informant, (P. W. 2) Mansha Ram and (P. W. 3), Ram Chandra are the eye- witnesses who gave testimony about the alleged incident. The (P. W. 1), Sone Lal Verma also proved the F. I. R. Ex. Ka-1 (P. W. 4), Gauri Shanker was a witness on the point of alleged conspiracy between the appellants and accused Vishnu Dutt who is the father of the appellant Jagat Pal to commit the murder of deceased Shriram. (P. W. 5), Dr. M. A. R. Siddiqui is the witness of autopsy of the dead body and stated about the injuries already narrated above and the cause of death of the deceased. (P. W. 6), S. I. Harnam Singh made attachment of the property of appellant C. T. P. W. 7 Constable Phool Chandra took the dead body of Shriram for post-mortem examination and identified the same before the Doctor on 24-8-1982. (P. W. 8), Dashrath Singh is the Ivestigating Officer who stated about recovery of blood stained and unstained earth, and a country-made pistol from the spot its memo Ex. Ka-7, site-plan Ex. Ka-8 and charge-sheet Ex. Ka-10. 13 Learned Sessions Judge on a consideration of evidence before him rejecting the various pleas raised by the defence, found the charge of murder established against all the four appellants and convicted them as stated above, while acquitting accused Vishnu Dutt on the charge under Sections 302/120-B I. P. c 14. We have heard learned Counsel for the appellants and the learned A. G. A. appearing on behalf of the respondent State. We have also been taken through the entire evidence on record by the learned Counsel. 15, On behalf of the appellants their learned Counsel has assailed the conviction recorded by the trial Court, and the prosecution case, on the ground that the EI. R. is a highly delayed and dubious document, the eye-witnesses examined by the prosecution and partisan and unreliable, the presence of (P. W. 1), Sone Lal and (P. W. 3), Ram Chandra on the spot at the time of the alleged incident of murder is highly doubtful, the time of occurrence given by the prosecution is also not true, the murder of the deceased in all probability having taken place in the early hours of the morning and not at 11. 30 a. m. and the evidence with regard to the details of the incident and the alleged role of the appellants is also unbelievable and shaky. 16. The two points on which there is no dispute between the parties are the factum of murder and the place of occurrence. The prosecution version that deceased Shri Ram was done to death by causing injuries by a sharp edged weapon ('banka')on 23-8-1982 in the field of Shri Ram Pasi, adjacent to the field of the deceased and his brother Sone Lal Verma, besides being stated by the prosecution witnesses, is also established by the testimony of (P. W. 5), Dr. M. A. R. Siddiqui, who conducted the post- mortem examination of the dead body of Shri Ram as well as the (P. W. 8), S. I. Dashrath Singh who found the dead body with blood falling from the injuries in the field of Shri Ram Pasi and also recovered a country-made pistol from near the dead body. Shri Ram Pasi examined as D. W. 2, on behalf of the defence has also corroborated the prosecution version regarding the murder having been committed in his field on 23-8-1982, though at a different point of time. 17. Now in the background of these abovestated facts we may consider the submis sions made by the parties. 18. Tkking up first the F. I. R. , Ex. Ka-1, which contains the earliest version of the prosecution regarding the incident and the details thereof, it would be found that the same was lodged at the Police Station at 5 p. m. on 23-8-1982 i. e. about 5 1/2 hours after the incident, the distance of the Police Station from the place of incident being 8/12 kilometers according to the police records. It is in evidence of the (P. W. 1), Sone Lal Verma that there are three routes for going to the Police Station, Fatehpur from his village Rariya. By the straight route the distance is 81/2 kilometers, by another one, it is 101/2 kilometres and by the third one which is the pucca road, it is 15 kilometers. He knows cycling and his brother's bicycle was also available at his village home. Yet however, he chose to go on foot and by the 10 1/2 kilometers long route. The explanation offered in this regard is that he did so because the accused persons had blocked the way on the shortest route and by this route it was not possible to go on bicycle due to water logging. According to his own statement he did not know about the accused persons lying in wait on the shortest route to the Police Station and learnt about it after going to a distance of about four furlongs when he saw them on the way, and thereafter he took the other way. Under these circumstances when he started from his village to go to the Police Station initially, there could be no reason for not using the bicycle as a mode of conveyance, to be able to reach the Police Station promptly at the earliest opportunity and lodge the FIR. Then once the had come to know that the blockade was on the shortest route to the Police Station and the other route was water logged, as a prudent man he would in the natural course have adopted the third route which was pucca road and obviously could be negotiated quickly on his bicycle or by other faster means of transport to reach the Police Station. It is also noteworthy in this connection that the first informant Sone Lal Verma is a lawyer by profession and as such cannot be said to be unaware of the importance and necessity 01 approaching the police in an incident of murder at the earliest. Similarly, in the normal course he would not have proceeded to the Police Station all alone when the incident occurred in his own village and a number of people of the village and his sympathisers had assembled, some at the time of incident itself and others immediately thereafter. The time-lag of about 5 1/2 hours in loging the FIR at the Police Station situated at a distance of 8 1/2 kilometres, therefore, clearly indicates that either the FIR was lodged after deliberation or the delay was on account of the informant not being available immediately after the incident for the purpose. In either event the FIR which is one of the most important documents of the prosecution, becomes highly doubtful and thus goes to shaken the credibility of the prosecution story. 19. The above view finds suppor from the principles laid down in Thulia Kali v. State of Tamil Nadu, AIR 1973 SC 501. 20. Since in this case the prosecution has come forward with a specific theory of existence of enmity and consequent motive on the part of the accused-appellants to commit murder of deceased Shriram it will be necessary to first consider the same. It is all the more so because the murder is not stated to be the consequence of any immediate cause. In this regard, the plea of the prosecution is that there was deep rootc 1 enmity between accused Vishnu Dutt and the deceased on account of election to the post of village Pradhan and also because deceased was instrumental in getting complaints made to the higher authorities against Vishnu Dutt for misappropriating Gaon Sabha Property. Admittedly, Vishnu Dutt was during the relevant period Pradhan of village Rariya. Out of the four accused-appellants, Munna is the sone of Vishnu Dutt while the remaining appellants Farooq, Jagat Pal and Secretary alias C. T. are in on way related to Vishnu Dutt or Munna. Farooq though a resident of village Rariya, is of a different religion. Jagat Pal and Secretary belong to a different village Tbrhawa. Barring bald allegation that they are friends and helpers of Munna, there is no material to show any communion of interest amongst these persons, muchless an interest which could prompt them to commit murder of the deceased. It is not anywhere in the evidence of the prosecution witnesses that these 'three appellants have anything in common with Munna or his father Vishnu Dutt or were involved in any other litigation along with them. 21. Even with regard to appellant Munna and his father Vishnu Dutt, the evidence led and the circumstance put forth, do not indicate such enmity as could provide motive to these persons to commit the murder of deceased Shri Ram. In the Panchayat election for the post of Pradhan deceased Shri Ram was not a candidate, rather Sone Lal (PW. 1), was one of the contestants. Enmity on account of contest, thus could be with Sone Lal and not the deceased. The contention in the F. I. R. and the Statement of the (PW. 1) that filing of the election petition against Vishnu Dutt was in the root of this enmity, is also not tenable because the election petition Ex. Ka-2 was filed by one Habib who was one of the unsuccessful candidates and who admittedly stood II in voting, to Vishnu Dutt. The plea that this election petition was got filed by the deceased is not established by any evidence worth the name. Nothing has been filed from the record of the said election petition to indicate that the deceased was prosecuting the petition on behalf of Habib or had been attending the hearing of the petition, or had filed affidavit or even any application for adjournment etc. therein. Under these circumstances, the pendency of an election petition against Vishnu Dutt cannot by any stretch of imagination be taken as a circumstance indicating enmity between appellant Munna and the deceased. 22. The other cause of enmity, the moving of an application to the S. D. M. complain ing about misappropriation of Gaon Sabha property by Vishnu Dutt is also not substan tiated. Ex. Ka-3 copy of application dated 17-6-1982 given by the village people in this regard Contains 21 names, including Shri Ram and Sone Lal Verma. The position of the deceased in regard to this application, thus, was like the rest of the applicants and there could be no reason for Vishnu Dutt and his son Munna to specifically direct their are towards the deceased Shri Ram in this regard. On the other hand, the fact of informant Sone Lal Verma being one of the contestants against Vishnu Dutt and his also being a signatory to the complaint application Ex. Ka-3 would go to show that if at all anyone could have been the target of their wrath, it would have been Sone Lal Verma and not the deceased. Under these circumstances the theory of the prosecution regarding appellant Munna and others being inimical to the deceased and having motive to commit his murder does not inspire confidence. This aspect of absence of motive on the part of the accused-appellants also thus goes to weaken the prosecution story with regard to their complicity in this murder. 23. Now this brings us to another important aspect of the matter, the time of occurrence. As already stated above, 'the parties' versions in this regard are Doles apart. While according to the prosecution the deceased was murdered at about 11. 30 a. m. in the day, the suggestion of the defence is that he was done to death in the early hours of morning and the assailants could not be seen. Reliance has been placed by the prosecution in this regard on the testimony of the eye-witnesses, (RW. 1), Sone Lal Verma (P. W. 2), Mansha Ram and (P. W. 3), Ram Chandra to the effect that the deceased along with Ram Chandra had gone to his field for weeding grass from the paddy crop early in the morning. While they were in the process of weeding, Sone Lal Verma went there to provide them drinking water and after water was consumed by them and he was returning home, at about 11. 30 a. m. the appellants came to the field, caught hold of the deceased and caused the fatal injuries. The defence on the other hand relies on the testimony of (D. W. 2), Shri Ram Pasi in whose field the murder took place as well as various circumstances to show that the deceased was murdered sometime before 6 a. m. in the morning. As far as the post-mortem examination which was conducted at 3. 30 p. m. on 24. 8. 1982 is concerned, as per the same the deceased had died about 1 1/4 days before the post-mortem examination. In his cross- examination however Dr. M. A. R. Siddiqui (P. W. 5) stated that the time of death could also be 4 or 5 p. m. on 23-8-1982. On internal examination by Dr. Siddiqui the stomach of the deceased was found to be empty small intestine full of gases and small amount of faecal matter, indicating that prior to his death the deceased had evacuated his bowels and had not eaten anything within four to six hours before death. It is however in the evidence of the P. W. 1 Sone Lal Verma that the deceased in the month of August used to go to the fields at about 7 a. m. in the morning, after taking breakfast and return how at about 12. 30 p. m. In between nothing eatable was sent to him in the fields. It has nowhere been stated by the P. W. 1 that on the day of occurrence the deceased had not taken his breakfast before proceeding to the paddy field. Under this circumstance of having eaten breakfast at about 7 a. m. , obviously at the time of death, at about 11. 30 a. m. his stomach and the small intestine would not nave been empty as found in the post-mortem examina tion. The process of digesting food material ordinarily starts within 2 to 4 hours. Conse quently, either there should have been present semi-digested food material in the stomach or digested food material in the small intestine of the deceased. The contention of the learned Counsel for the respondent and the view taken by the learned trial Court that digested or semi-digested food material could not have been present because of the oesophagus having cut, is absolutely untenable because the partial cut on the oesophagus has nothing to do with the contents of the stomach and the intestine. Probably, realising this situation cropping up on account of the medical evidence that P. W. 3 Ram Chandra was made to state that the deceased on the day of occurrence had not eaten break-fast before going to the field, such situation is highly improbable because in the normal course the deceased could not be expected to have remained without eating anything by way of break- fast from morning till noon. 24. All these factors taken together and also in the light of the delayed F. I. R. , go to indicated that the deceased was done to death not at 11. 30 a. m. on 23-8-1982 rather sometime early in the morning on the said date. The entire fabric of the prosecution story regarding this incident, the manner of assault and the probability of the information and other alleged eye-witnesses having seen it, thus, falls to ground. 25. Even if we ignore for a moment all the above factors regarding absence of satisfactory evidence to prove existence of motive and the time of occurrence alleged by the prosecution, in order to sustain conviction and bring home the charge of murder against the accused-appellants, the prosecution will be required to show that its story is supported by the testimony of witnesses who are reliable and whose presence on the spot is free from reasonable doubt. In the instant case, however, the evidence of the eye-witnesses examined (P. W. 1 to 3) is not of such category, as shown by the circumstances which are glaring, and could not be ignored. 26. Out of the three eye-witnesses examined, (P. W. 1) Sone Lal Verma, the brother and (P. W. 3) Ram Chandra the son of the deceased were admittedly from much before this incident residing outside village Rariya, the former in the city of Barabanki and the latter Lucknow. The (P. W. 1) Sone Lal Verma is a lawyer by profession practicing in the Barabanki Courts. The case of the prosecution is that in order to look after his cultiva tion he used to go and stay in his village in the festival holidays as well as eveiy Sunday. He thus used to be present in the city of Barabanki and reside there from Monday morning to Saturday evening. The incident in question occurred on a Monday. Ordinarily thus a presumption would be that he was required to be present in the city of Barabanki in connection with his professional work. Although he is a regular legal practitioner having cases on his file, he tried to prove his presence in village Rariya on the date of occurrence on the plea that on Monday morning he had missed the bus leaving for Barabanki and as such had stayed back in the village. He has, however, not satf as to why he could not catch the next bus, it is not the case of the prosecution that only one bus is available from near his village for Barabanki. In view of the consistent and Vehement plea of the prosecution regarding his absence from the village and presence in the Courts at Barabanki on 23-8-1989, this witness tried to state that he had no cases listed in any Court in Barabanki on the said date. However, he further stated that he could not be certain unless he saw his diary of cases. The said diary however was not produced before the Court, despite specific orders of the trial Court. Yet however, the said Court strange ly enough failed to draw adverse inference against the truth of the version of this witness. On the other hand, there is categorical evidence oral and documentary led by the defence in this case going to show that Sone Lal Verma was present and did work in the Courts at Barabanki on 23-8-1982. The D. W. 1 Mohd. Shakir Khan, a Lekhpal, whose statement was recorded in the Court of Tbhsildar, Nawabganj, district Barabanki on 23-8-1982 in two cases under Section 122-B titled Gaonsabha v. Mullu and Gaon Sab ha v. Manadeo, has categorically stated that after his examination-in-chief, the Counsel for Mullu and Mahadeo had cross-examined him. He specifically Pointed out towards Shri Sone Lal Verma present in the Court to be the Counsel, who conducted the said cross-examina tion. Merely because at the time of such identification Sone Lal Verma was alone and there was no regular identification parade the testimony of this witness could not be discarded as has been done by the learned Sessions Judge. It is not the case of the prosecution that Sone Lal Verma was not the Counsel for Mahadeo and Mullu in those cases rather in paragraph 35 of his statement he admitted that he is a Counsel for Mullu and Mahadeo in the aforesaid cases since 1982. Prior to that in 1981 also he was engaged by them in another case. In fact the original order-sheets of those cases summoned in the Court contained signature purporting to be of the Counsel for Mullu and Mahadeo, Sone Lal Verma. It is true that the signatures were not subjected to expert examination but no such burden lay on the defence, nor under law adverse inference as drawn by the trial Court could be drawn against the defence version. Under law the defence is not required to prove its allegation in the manner the prosecution is required to do rather its duty ends once its version in defence is probabalised. There is a presumption in law about genuineness of the Court record and its contents. The same could not be lightly brushed aside. The observation of the trial Court that the signature in the record dated 23-8-1982 of these files being in Hindi could not be of the (P. W. 1) who signed in English, is belied by his own statement that he signs sometimes in English and sometimes in Hindi. The contention that if the signatures were genuine, being a person working in the Court the P. W. 1 could have got the same tampered or removed is too fantastic to be believed. All these desperate attempts and contentions of the prosecution and its key witness is indicative only of the fact that this witness was, as he should have been present in the Court at Barabanki in the working hours on 23-8-1982 and as such could not have been present on the spot and his plea of having seen the occurrence and the accused-ap pellants being assailants committing the murder, is nothing but a product of imagination. 27. The position of the (P. W. 3) Ram Chandra is also on better. He was student of LL. B in Lucknow during the relevant period and was also working as clerk to an Advo cate there. For both these reasons the normal place of his presence on the day of occur rence was Lucknow city and not village Rariya. He has also not produced the diary or any other document to show that he did not attend to his duties with his lawyer or the class, at Lucknow. The fact that this witness Ram Chandra and (P. W. 1) Sone Lal did not receive and injury in this incident despite themselves being soft targets and one of the assailants being armed even with a pistol, is also a circumstance, though not sufficient in itself, but when taken into consideration with other factors, capable of showing his absence, and not presence on the spot. 28. Although the fact that the prosecution had to rely on two highly interested and got up witnesses to support its case against the accused appellants, is itself a factor going to indicate the hollowness of its story and despite the (P. W. 2) Mansha Ram being a person of the locality its story cannot be given any credence and is liable to be rejected, yet at this stage we may look into their evidence about the details of the incident, to find out as to whether even ignoring the other adverse factors, the story regarding the manner of assault on the deceased and the complicity of the accused-appellants, should be accepted. 29. The crux of the statement of the (P. W. 1) Sone Lal Verma on this point is that as soon as he left the paddy field after providing drinking water to the deceased and Ram Chandra (P. W. 3) and started talking to one Ramdeo in the 'khalihan' nearby, he heard noise and saw the deceased Ram Chandra running towards him, surrounded as well as chased by the four appellants. On his alarm Mansha Ram also reached and they rushed towards the victim in the field of Shri Ram Pasi. Farooq caught the deceased by waist and the three others gave blows with 'bankas' to him and he fell and died. Farooq threatened him and other, witnesses with the pistol in his hand and when other villagers ran towards the scene of occurrence all the four fled. Reaching near the deceased they found a 'katie? lying near him. Cross- examined he stated that he did not consider it proper to name the other eye-witnesses in the F. I. R. , that Ram Chandra ran from the place where grass was being weeded towards north-east; that the accused- appellants ran away with their pistol and 'bankas'; that 'khurpi' of Ram Chandra was with him but that of the deceased was not found on the spot; he did not see the accused taking away the said 'khurpi9. 30. The (P. W. 2) Mansha Ram stated that he was pasturing his cattle at the 'khalihan' at a little distance from the place of occurrence when he heard the alarm raised by the deceased and Ram Chandra and saw the two being chased by the appellants in the field of Shriram Pasi. Farooq caught the deceased from his waist and the three others gave blows by their 'bankas'. After coming to some distance Ram Chandra, along with him, Ramdeo and Sone Lal rushed towards the scene of occurrence whereupon the accused-assailants ran away with their weapons. He did not see the 'khurpi' or the deceased in his field although weeded grass was lying there; although it was the weeding season for paddy but no one else was weeding grass in other fields; after Shriram fell Farooq kept on threaten ing the witnesses with the pistol. 31. (P. W. 3) Ram Chandra stated that 15-20 minutes after they drank water brought by Sone Lal, appellant Farooq with the pistol and the three other appellants with 'bankas' came there on which he was alarmed by the deceased. While the deceased ran towards east, he ran towards north and then east. In the field of Shriram Pasi Farooq caught the deceased by waist and the others inflicted blows with 'bankas'. When he, Sone Lal, Mansha Ram and some others of the Village rushed raising alarm, Farooq threatened with his pistol to shoot anyone daring to come forward and they stopped. Thereafter the accused persons ran away. He saw ail the four accused persons running away with their own weapons, he did not see any of them taking away the 'khurp? of the deceased. 32. It would thus be found that there are inherent improbabilities and inter-se con tradictions, in the statements of these witnesses regarding each and every aspect of the incident. While the (P. W. 1) stated that the accused persons while chasing and surrounded the deceased as well as Ram Chandra (P. W. 3), the other two do not say so, rather say that they both ran in different directions and Farooq caught him in the field of Shriram. On the point whether Farooq was still holding the deceased when he fell, also the witnesses are not consistent. They have all stated that only one of the appellants Farooq, had a 'kutta' and there others had 'bankas'. They all ran way with their weapons. Farooq who had been threatening the witnesses with his pistol ran away with the said weapon. Yet however, on the spot the Investigating Officer found a country-made pistol, the mystery of which is not solved by any of these witnesses. Obviously it is indicative of the fact that the incident and the fatal assault on the deceased, occurred in a manner entirely different from what has been stated by the prosecution witnesses and this is the reason why no 'khurpi' of the deceased was found in his paddy field, nor has the Investigating Officer mentioned that he found heaps of freshly weeded grass lying in the said field, and there was found a pistol near the dead body in the field of Shriram Pasi. All these factors coupled with the various other circumstances striking at the root of the prosecution theory of motive, time of occurrence and the presence of the eye-witnesses, go to strongly probablise the defence version that the deceased was done to death early in the morning in the field of Shriram Pasi and the assailants or the manner in which he was killed were not noticed by any witness. On the learning of this incident, after due deliberations the first informant and others of the family of the deceased, lodged a First Information Report implicating the accused persons on account of suspicion. Suspicion howsoever strong, however, under law cannot be a substitute for proof of a criminal charge. The prosecution having singularly failed in establishing any or the ingredients of the offence alleged to have been committed by the appellants, before us, we find their conviction for the offence under Section 302/34 I. P. C. and the sentence awarded, unsustainable and liable to be set aside. 33. For these above reasons, therefore, we allow this appeal and setting aside the conviction recorded, and the sentence awarded by the learned trial Court acquit all the appellants Farooq, Jagat Pal, Secretary alias C. T. and Munna of the charges under Section 302/34 I. P. C. 34. All the appellants are stated to be in jail. They shall be released forth with unless wanted in some other connection. Appeal allowed. .;