N.L. Ganguly, J. - (1.) All these appeab arise out of the judgment and order dated 2( December. 1978 passed by Sri S.K. Misra, Addl. Sessions Judge, Jhansi in S.T. No. A-18 of 1976 convicting and sentencing Siva Ram, appellant under Section 302/34 I.P.C. for f imprisonment, he was also sentenced under Section 307/34 I.P.C. for five years R.I. Both to sentences to run concurrently. The Government Appeal No. 757 of 1979 directed against the same judgment is for 09 hancing the sentence awarded to Si%a Rani by the Sessions Court. Government Appeal No 1042 of 1979 is directed against the same judgment for setting aside the order of acquittal and convicting and sentencing the accused opposite parties Chandrabhan, Gajraj, B mali, Khusi Ram and Narain Das. One Lochan Singh son of Moti Singh adopted son of Ganesh Singh r/o village Barokhari P.S. Samthar Distt. Jhansi lodged an FIR at the police station Samthar, Sub-district Moth Distt. Jhansi on 27.2.1976 at 6.30 p.m. Siya Ram, Narain Das and Chandra Bhan sons of Ram Sahai Lodhi, Banmali son of Bhudhai Ram, Khusi Rain s/o Ram Bharose of the same village informating the police that Girendra Singh and Sri Daval had been murdered by the named accused persons by gun shot, lathi and balllam at 5 p.m. The informant Lochan Singh in the FIR stated that there was a criminal case going on in the Court of C.J.M. Jhansi against Sheo Ram Singh, Girendra Singh and informant. who were returning from Jhansi to village Samthar. Near the village in the way Sri Daval and Kalkain met them. These five persons proceeded to their village on foot. At 5 P.M. when they had reached near the village near the Arhar field of Pali Chamar, the accused Siva Ram, Narain Das, Chandra Bhan sons of Ram Kishan, Gajraj s/o Ram Sahai Lodhi and Ban-mall and Khusi Ram came out of the Arhar field of Pali Chamer where they were hiding themselves. They were armed with lathi, ballam and gun. They pounced. Siva Ram was armed with 12 bore gun, Narain Das armed with ballam and the remaining accused were armed with lathis. They hurled abuses to the complainant-informant and his companions and accosted, surrounded them and beat them. All the five persons of informant side tried to run away. Siva Ram fired on them. Sri Dayal and Girendra Singh were shot by gun and were also assaulted by lathi and ballam who fell there. The remaining three ran reversed raising alarm. Hearing the gun shot sound, persons working in the nearby field and passers by arrived there. Siya Ram loudly said both have been finished. Now run way. All the accused persons escaped to village Paharoura. The informant and his associates reached to the injured and saw that Sri Daval and Girendera Singh were lying there severely assaulted. On account of the gun with the accused persons. informant and his associates could not chase the accused persons. In the FIR it was said that both the dead bodies were lying on the spot. Cases were going on between Banmali. Narain Das and Siya Ram with informant and Sri Dayal. Siva Ram's father was murdered. Deceased Sri Daval was an accused in the said case. On account of the said enmity, the accused persons attacked the informant. his brother Girendra Singh, deceased and Sri Daval and killed them. It was mentioned in the FIR that Siva Ram is a constable in the police in C.I.D. He came from there, formed an unlawful assembly and assaulted, as stated. The six accused persons were charged-sheeted and committed to the Courts of Sessions by the C.J.M. Jhansi. The learned Sessions Judge charged the accused Siva Ram, Chandra Bhan. Gajraj, Khusi Ram and Narain Das under Sections 302/149 IPC, 307/149 and 147 and 148 IPC. Charge under Section 302/149 IPC was framed against all the six accused, charge under Section 307 IPC was also framed against accused Siva Ram. The remaining five accused persons were also charged under Section 307/149 IPC. The charge under Section 148 I.P.C. was framed against the accused Siya Ram. Narain Das. charge under Section 147 IPC was also framed against accused Chandra Bhan, Gajraj. Banmali and Khusi Ram. The prosecution examined PW 10 Lochan Singh and PW 8 Kalkain as eye-witnesses of the incident. The other eye-witnesses (PW5) Khanju was examined who partly supported the prosecution case and then turned hostile. Besides PW 6 Sukhe was also examined. The prosecution examined PW I Dr. P.N. Awasthy who had conducted the post-mortem examination of Girendra Singh and Sri Daval. PW 2 Ram Adhar, Sub-Inspector of Police who was at the time of the incident, working as Asstt. Sub-Inspector at the P.S. Samthar, PW 9 Sri Nath Chaturvedi. Dy. S.P. (Intelligence). Kanpur who stated that Siva Ram had taken three days leave, just before the incident. The remaining witnesses PW 7 Bhure Singh, witness of the recovery of the gun of accused Siva Ram, PW II Riazul Hussain, Malkhana Moharrir, PW 12 Badam Singh. Head Constable, PW 13 Sheo Charan Singh, S.I., Investigation Officer, P.W. 14 Sri B. Roy, Arm Expert, PW 16 constable Mohar Singh, PW 17 constable Kunj Behari and PW 18 Constable Kanaju Lal, besides affidavits of formal witnesses Kaushal Kishore, Thakur Dutt Jha, Ramesh Chand, Mohar Singh Yadav and Balal Deen were filed before the Court. The prosecution case and evidence, as led before the Sessions Court shows that the above named six accused persons were members of unlawful assembly in prosecution of their common object committed murder of Sri Dayal and Girendra Singh on 27.2.76 at 5 P.M. near the field of Pali Chamar in village Barokhari. With the common object the accused person Siva Ram fired at Lochan Singh, Shiv Ram Singh and Kalkain with intention to commit their murder, but they did not receive gun shot injuries and escaped death. Sia Ram accused was a constable in police on the date of incident and was posted at L.I.U. office at Kanpur City. He possessed a licence gun which was later during investigation recovered from him hidden in Ghura. The said licenced gun and Siva Ram was shown to have been used in commission of the murder of Sri Dayal and Virendra Singh. Litigation and enmity between the accused and the deceased is said to be the motive of the murder. PW 10 Lochan Singh aged about 29 years r/o village Barokhari stated in the Court that in 1967, his Nana Ganesh Singh adopted him as he had no children except a daughter, mother of Lochan Singh. Lochan Singh after the adoption with his father Moti Singh. brother Girendra Singh came from Mainpuri and started living in the village Barokhari. Girendra Singh had also some land in village Barokhari also. He used to look after the land situated in District Mainpuri also. Rame Sahai, father of accused Gajraj, Suraj Bhan and Mehtab Singh did not want to live with him in village Barokahri. It Has said if Girendra Singh did not live in the village Barokhari, Mahtab Singh would get the land of Ganesh and for this reason Mehtab Singh also wanted that Girendra Singh should not live in village Barokhari. In order to harass the informant Lochan Singh, Mehtab Singh, Suraj Bhan and Ram Sahai got several cases instituted against him. One FIR was got lodged under Section 376 IPC in 1970 at the instance of Mchtab Singh against the informant but police submitted a final report. Mehtab Singh also got a false and fictitious sale-deed executed from Ganesh in favour of his grand son. A civil suit for cancellation of the sale-deed was filed by Lochan informant against Mehtab Singh and Ram Sahai, father of Gajraj Singh, accused. A criminal complaint under Section 376 IPC, was got filed through Urmila Devi to pressurise the informant. so that the civil suit for cancellation may be withdrawn. Lochan Singh, informant had got his name mutated over the land of his Nana. It is said that after the present murder case of Girendra Singh, under compulsion a circumstances, the informant got the civil suit for cancellation dismissed and got the dispute compromised. The informant said that Banmali. accused had filed a criminal complaint tinder Section 504/506 IPC against the informant and Sri Dayal deceased. The accused Narain Das was a witnesses in the said case. The complainant stated that Banmali, Siva Ram and Narain Das and Ram Naresh had also filed a criminal case against accused Khusi Ram and Sri Daval, deceased, under Section 304 [PC in which Narain Das and Ram Sahai, father of accused Gajraj was shown as witnesses. Lochan Singh had said that a civil suit of 1972 was filed by him against the mother of the accused Khusi Ram for recovery of money. That was the case of enmity between Khusi Ram and the informant and deceased Girendra Singh. The immediate motive for the commission of the offence is said to be that Ram Kishan, father of Siva Ram and Narain Das was murdered 11/2-2 years before the murder. Sri Dayal, deceased and his brother were made accused in the case. Girendra Singh, deceased used to to pairvi in the murder cases pending against Sri Dayal, deceased, on account of which the accused Siva Ram and others felt animosity. Accused Banmali and Khusi Ram are the sons of Mama and Phupha and are related as brothers who were also partisan of accused Siva Ram. As regards the present incident PW 10 Lochan Singh stated that on the day of the incident. he alongwith the deceased brother Girendra Singh and Shiv Ram Singh had gone to Jhansi to attend the criminal case. The case was adjourned as the presiding officer was absent. These three persons became free from the court attendance earlier than usual court hours at about l P.M. and they had started back for their village. They had reached Qasba Samthar at about 4 P.M. there they met eve-witnesses Kalkain and deceased Sri Dayal. These five persons started for their village Barokhari, when they reached near the filed of Pali Chamar at a distance of about 11/2 furlong from their village, It was about 5 p.m. all the six accused persons from the crop of the field suddenly came out from the field. The accused Siva Ram armed with gun, Narain Das with ballam and remaining four accused Khusi Ram. Gajraj. Banmali and Chand Bhan armed with lath is. Siva Ram filed from his gun at Girendra Singh. who fell down after receiving the gun shot injury. The remaining four persons ran for safety towards the village Barokhari Deceased Sri Dayal had run towards the village Paharpura, Thereafter, the accused Siya Ram made a second fire from his gun at the deceased Sri Dayal, who fell down after receiving the gun shot wound near the boundary of Sunder Chamar. The accused Siya Ram ran towards the informant and made a third gun fire on him in order to kill the informant, which did not hit him. The remaining five accused persons reached near the injured Sri Dayal and beat him with their ballam and lathis. The accused Siya Ram said that they s have killed two persons and they should run away. They ran towards village Paharpura. After the accused persons had run away, the informant Lochan, Kalkain and Sheo Ram Singh came near Girendra Singh and Sri Dayal and found that they were dead. Lochan, Shiv Ram and Kalkain went towards the thana for lodging the report. While on way at village Sajokhari, these three persons met Sia Saran and Jagdish Prasad and told them about the incident. Sia Saran and Jagdish Prasad went to the place of murder alongwith Kalkain. Sheo Ram Singh and Lochan went the police station. lodged the FIR., a copy of which has already been exhibited as Ext. Ka 6. naming the accused persons about the incident. After lodging the FIR the informant Lochan Singh went to the village of murder. The other eve-witness PW 9 Kalkain is a resident of village Barokhari. He also stated that six accused persons belong to his village. Sri Daval has met and taken him at Qasba Samthar on the date of incident. Thereafter Lochan Singh, Shiv Ram Singh and Girendra Singh also met him near the motor stand Samthar. All these five persons left for their village. The witness stated that Girendra Singh, Lochan Singh and Shiv Ram Singh were returning from village after attending their case in Jhansi. He stated that when they reached near the arhar filed of Pali Charan, all the six accused persons had suddenly cane out from the field. Accused Siva Ram armed with a gun, Narain Das armed with ballam and remaining four accused armed with lathis at that time. He also stated that accused Siva Ram fired on Girendra Singh who fell down. Therefore, accused Siya Ram fired gun at Sri Dayal and shouted to kill. The remaining five accused then beat Sri Dayal with ballam and lathis. Siya Ram made a third gun fire towards them. The witness stated that Siva Ram had fired at Girendra Singh from a distance of 10 paces. After shooting at two persons, Siva Ram shouted that two persons have been killed, they should run away. They escaped. The witnesses saw that Girendra Singh and Sri Dayal had died. It was stated that Sri Dayal had fallen down at a distance of 80 paces from the place where Girendra Singh had fallen. He gave the time of the incident at 5 P.M. corroborating PW 10 Lochan Singh. He also stated that 11/2 years before the present incident, Ram Kishan. father of accused Siva Ram had/been murdered and deceased Siya Ram were facing trial as accused in that case. Eye-witness Shiv Ram Singh is said to have colluded with accused persons. As such the prosecution did not produce him as witness in the case. PW 13 Shiv Charan Singh stated on oath that on 27.8.76 at 6.30 P.M., the FIR of the incident was lodged in his presence, The-case was registered and he started investigation in the case. He had proceeded to village Barokhari and had reached there at 7.30 p.m. He had reached the village of incident on the spot and found Girendra Singh and Sri Dayal lying dead. Panchayat-nama of the dead body of Girendra (Ext. Ka-16) was prepared, the dead body was sealed in a bundle. The panchayatnama of dead of Sri Dayal was also prepared and marked as Ext. Ka-17 and the dead body was also sealed in cloth bundle. Sketch map of the dead bodies were prepared separately. He proved the aforesaid documents prepared by him in presence of the witnesses. The report for sending the dead body for post-mortem examination was prepared separately which are also proved and exhibited in the Sessions Trial. The dead bodies were sent through constables Kamta Prasad and Baladeen alongwith the dead bodies. Before preparing the panchavatnama, the investigating officer had removed the blood stained pyjama, kurta, mufler shoes etc. from the dead bodies of Girendra Singh and Sri Dayal. The said items were sealed and marked as Ext. before the Sessions Court. Three pallets emitted from gun was found near the place of the dead body of Girendra Singh and two dead cartridges and a broken keal was found there, which were also taken into custody and kept in a bundle and sealed. Near the dead body of Sri Dayal. two pieces of bones, three pieces of broken teeth and one button were also recovered by the investigation officer. The blood stained earth and earth were recovered from both the places where the dead bodies of Girendra Singh and Sri Daval were found. The accused persons were searched but could not be traced out. The Investigating Officer. recorded t statements of the witnesses of panchavat-nama, inspected the place of occurrence and prepar the site map of the place of incident. The I.0. at the time of his inspection at about 70-80 paces from the place of incident recovered empty cartridges from the land which was also taken into custody, sealed and memo was prepared. The I.O. recorded the statements of Khunju and Sukhey of village Bangri. Statements of Lochan Singh and Shiv Ram Singh could not be recorded on that day as they have gone with the dead bodies of the deceased persons. The I.0. had recorded the statement of PW 10 Lochan Singh and Shiv Ram Singh also under Section 161 Cr.P.C. The I.O. reached Kanpur to arrest Siva Ram A.S.I. Sri Ram Adhar had brought from Kanpur the papers regarding the application of Siya Ram accused for leave which was also proved before the Sessions Judge. PW 7 Bhurev Singh was examined to prove recovery of the gun of Siva Ram which was recovered from the back of the house of Bhagirath. father of Narain Das and Siva Ram. The gun and the belt of cartridges were recovered from the ghura wrapped in dair. Memo was prepared. The gun and live cartridges were proved as material Ext. Before the Sessions Judge. PW 14 Sri Ram. Fire Arm and Ballistic Expert of U.P. Government was examined by the prosecution, who had stated that he has examined the items namely the 12 bore gun, empty cartridges sent to him for expert opinion, Before examining the said items. he had verified and examined that the seal on the articles were intact and similar to the specimen, seal sent alongwith the said articles. The single barrel gun was also received by him alongwith the belt of cartridges for 8 live cartridges with it. The gun was examined by him to give opinion whether TC 1, TC 2 and TC 3 were fired from the said gun, He had marked the cap of the cartridges of TC 1 to TC 3 to find out firing pin marks. After examining the same, he submitted the opinion that the gun was used for firing the said cartridges. The photograph of the firing pin etc. was taken by him, the record of the same was filed and proved before the Sessions Court. The original report was sent by him to the Police Supdt. Jhansi. carbon copy was prepared at the time, which was brought by the witness in the court. The expert stated that the gun marked Ext. 24 was received by him on sealed condition in a cloth along with tat patti belt. In cross-examination, this witness PW 14 Sri Ram stated that three cartridges TC I to TC 3 were Indian made cartridges with pervasion cap made of copper and parcasion cap of dispersal cartridges Ext. 23 was made of brass. PW 6 Sukhy stated that he was. cutting grass in the filed in Moja Bazar at 5.30. P.M. when he is said to have seen all the accused persons of village Barokhari going towards Girgaon and then described the various arms they were holding at that time. He stated that he heard Siva Ram accused saying that he had taken the revenge of his father's murder and Siva Rant was also saving that Girendra Singh has been unnecessarily killed, He also said that accused Gajraj stated that there is no harm in killing of Girendra Singh because the same punishment will be given for two murders which is given for one murder. Another witness PW 5 Khanju was examined in the Court. He was declared hostile. This witness could not correctly identify Siya Ram. He named Siva Ram that said that he was armed with ballam. He correctly identified Banmali, Gajraj and Narain Das. He had also stated that accused Jhusai was armed with lathi and had pointed to Khusi Ram as Jhusai. The prosecution examined PW I Dr. P.N. Awasthi who conducted the post-mortem examination of the two deceased persons Girendra Singh and Sri Dayal who had conducted the post-mortem of Girendra Singh at 12 noon and Sri Dayal at 2 p.m. respectively and found the following injuries:- 1. Gunshot wound 1 cm, x 1 cm. on back of left thumb through and through. 2. Gunshot wound 1 cm x 1 cm through and on the back of middle of left middle finger. Fracture in left second digit bone. 3. Gunshot wound 1 cm X 1 cm on the middle of left inquial region. 4. Gunshot wound 1 cm x 1 cm muscle deep on inquial region. 5. Two gunshot wounds each 1 cm X I cm 2 cm on front of lower part of abdomen, 3% above the public bone. He also found that the injuries Nos. 3, 4 and 5 are wounds of entry and injuries No. 6, 7 and 8 were the wounds of exit. He also found that all the gun-shot wounds are rounded. He also stated that the death of deceased was caused due to shock and hemorrhage as a result of these injuries. He also stated that the edges of the gunshot wounds were found black and that is why he has found them to be gun shot wounds. He also stated that these gun shot wounds were caused from a distance more than four feet and the gun shot could have been caused from a distance of ten or fifteen feet. He had also found one pellet from the bladder of the deceased. The post-mortem report is Ext. Ka 1. He also said Girendra could have died about 18 hours before the post-mortem and the death could have occurred at 5 p.m. on 27.2.76. He also proved the post-mortem report Ext. Ka-2, regarding deceased Sri Dayal and stated that he had also died about 19 hours before. He found the following ante-mortem injuries on the body of the deceased Sri Dayal:- 1. Gunshot wound 11/2 cm x 1 cm on the outer part or right eye. 2. Lacerated wound 5 cm x 2 cni on the back of head. 3. Lacerated wound 3 ems x 2 cms through and through on the middle of right ear. 4. Punctured wound 1 cm x 1 cm on the right eye ball. 5. Lacerated wound 2 cm X 1 cm muscle deep on the middle or lower lip. 6. Punctured wound 2 cm x 2 cm bone deep on the lower lip. Right jaw bone fractured. The Doctor stated that the scalp and bones from injuries No, 1 to 2 were fractured. He also stated that injury No.2 is the exit wound of injury No. 1. He also stated that injury No. I was caused from a distance of more than 4 feet and could have been caused from a distance of 8 or 10 feet. He also stated that injuries No.3 and 5 could have been caused by a lathi and injuries No.4 and 6 could have been caused by a ballam. He also stated that the deceased Sri Dayal out of shock and hemorrhage as a result of injuries mentioned above. He also found the time since death as about 18 hours. He also proved the pellet taken out from the body of Girendra. He was recalled to clarify the number of teeth of deceased Sri Dayal. He said that he has mentioned the number of teeth of Sri Dayal as 16 x 16. He also stated that the teeth might have been counted by his helper under his supervision. He, however, stated that due to injuries No.5 and 6 of deceased Sri Dayal, there was possibility of breaking of his teeth. The learned Sessions Judge after discussing the evidence on record, was of the view that the charge under Section 302/34 IPC and 307/34 IPC was established against the appellant Siva Ram. The learned Sessions Judge, however, gave the benefit of doubt to the remaining five accused persons. as the prosecution evidence against them was not sufficient to inspire full confidence. He observed that the two brothers of accused Siya Ram, Chandra Bhan and Narain Das were also made accused in the case. All the enemies of Lochan Singh were made accused in the case. He observed that the statement of Lochan Singh that all the persons with whom litigation took place have been made accused. It was also proved from Ext. 67 to 71 that accused Gajraj. Banmali and Khusi Ram were also inimical to Lochan Singh. that is why they were also made accused in the case. The learned Sessions Judge also found that the prosecution was not able to establish that Gajraj or Banmali spoke any word on the date of incident or soon after the incident. No specific role of remaining five accused could be established by the prosecution. The learned Sessions Judge held that it is difficult to believe that Lochan Singh or Kalkain would be able to see even the remaining five accused with their arms, even though they suddenly came out of hiding place from the arhar field. As soon as accused Siya Ram came out of his hiding place, he fired at Girendra Singh. Therefore, Lochan Singh or Kalkain could have seen only accused Siya Ram who had a gun in his hand. It appears doubtful whether these witnesses were able to see the arms of all the remaining five accused. The witnesses must have themselves run away for their safely. Hence it is doubtful whether the remaining five accused have also participated in this crime or not. Moreover, there are chances that some persons may be innocent in the remaining five accused. Since the guilty accused cannot be picked out from the innocent ones, all the remaining five accused have to be given benefit of doubt. Sri G.S. Chaturvedi, learned counsel for the appellant Siva Ram. against his conviction. and counsel for the opposite parties for five accused persons acquitted by the Sessions Judge submitted that the prosecution evidence regarding the appellant and acquitted accused persons, are not worthy of reliance. He submitted that the statement of PW 10 Lochan Singh is highly partisan and unreliable. Sri Chaturvedi placed the evidence of PW Dr. P.N. Awasthi in extenso and submitted that perusal of the statement of PW 10 Lochan Singh and PW 8 Kalkain show that the ocular evidence is contradictory and unbelievable, in view of the statements of Dr. P.N. Awasthi (PW 10). Sri Chaturvedi pointed out to the statement that Sri Dayal, deceased after receiving the gun shot ran 70 paces and fell at the mend. He submitted that the manner in which the prosecution disclosed the incident to have taken place, is highly doubtful. Sri Dayal after the fire shot at Girendra Singh is said to have ran away towards the south-west and had fallen at the mend of field of Sunder s/o Gurai in the crops of wheat and gram. As is evident front the site plan, prepared by the Investigating Officer Sri Chaturvedi submitted that in the normal course, a person who is running to escape from the likely assault by his enemies. would not turn his face back to see the assailant. The place where Girendra Singh's dead body was found is 80 paces away from the place the dead body of Sri Dayal was found. It is said that after receiving the gun shot Sri Dayal had travelled 70 paces. Sri Chaturvedi submitted that firstly the deceased Sri Dayal would not receive the injuries on his face but would receive injuries on the back while he was running he was shot. The argument of the learned counsel is that the gunshot injuries received by the deceased Sri Dayal. quoted above. shows that the scalp bone of injury No.2 was fractured. The injury No.2 is the exit wound of injury No.1. The witness also stated that the bone of scalp injury No. 1 and right parietal bone occipital bone had fractured, membranes of the brain where torned, brains were ruptured, bone, of the head were lacerated, blood was clotted thereon. Dr. Awasthi stated that in his opinion after seeing injury s. I and 2 where all the bones were fractured and brain material were ruptured, it is most likely that the victim after receiving such injuries would become unconscious and fell down immediately. But he cannot give opinion as to whether after receiving such injuries, a person would nun 70-80 paces or not. Sri Chaturvedi submitted that the Doctor since said that a person with such serious injuries would become unconscious and fell down at the spot immediately appears to be correct His mere denial that he could not give positive statement as to whether the person would be able to run 70-80 paces is not believable. Sri G.S. Chaturvedi submitted that it appears that in the FIR Lochan Singh had not clearly stated that after receiving the gunshot injuries, Sri Dayal had run 70 paces and fell down near the mend of the field of Sunder Chamar s/o Gurai Chamar. Sri Chaturvedi submitted that in the FIR itself the informant Lochan Singh stated that at the time of incident on hearing the shrieks and noise and sound of gun shots, persons working nearby the fields and passersby had come near the place when Siva Ram had said both have been killed now run away. It is submitted that none of the witnesses whose field is near the place of occurrence appeared as a witness to support the prosecution case nor even a passerby who may be termed as independent witness. came to support the prosecution case. Sri Chaturvedi submitted that the witnesses Lochan Singh and Kalkain, both are interested, inimical and partisan witnesses. Their evidence is not reliable. He also submitted that the learned Sessions Judge declined to accept the testimonies of these witnesses so far: the other five accused acquitted by him for their sound and cogent reasons recorded. The learned Addl. Government Advocate Sri K.S. Saxena submitted that it is not necessary that after receiving the injury on the head fracture of the scalp bone and ruptured of the bone material. the person would die on the spot instantaneously and would not be able to run 70 paces. The learned A.G.A. placed the passages quoted at page 305 from Taylors Principles and Practice of Medical Jurisprudence Vol. 1 1948 Ed. He placed page 306 of the said book which is quoted as under: "in R.V. Nilner and others, in which a man had been assaulted by the prisoners and had died from the injuries sustained, the tempral bone had been beaten in, and the base of the skull fractured, these was a large coagulum of blood effused on the left side of the brain. which by its pressure had flattened this organ. Notwithstanding these injuries, the deceased walked a considerable distance, and he survived about twelve hours. Two men quarrelled in a public house and one struck the other in the face with an umbrell. The victim not only walked from the cab into the London. Hospital but showed so little sign of brain injury that he was allowed to go home, and symptoms did not set in for forty. eight hours, during which he walked and talked as usual. At the autopsy, the end of the umbrell, four and a half inches in length, was found embedded in the bones of the base of the skull, and had penetrated completely through the pons varolii (a region of the junction of brain and cord, usually considered a very fatal region). In one of our cases a man committed suicide by shooting himself with a .46 revolver. The bullet entered under the chin, passed through the floor of the mouth and tongue, entered the skull just behind the roof of the left orbit, passed through the left frontal and temporal lobes of the brain and made its exit through a hole 11/4 inches in diameter at the top of the head. Bits of bone and brain matter driven to the roof of the shelter in which the suicide occured. The injury was inflicted prior to 6.30 a.m. and after shooting himself the man walked round the gardens in the snow for at least 165 yards, returned to the shelter for an indefinite period, then walked across the road to the house where lie lived at 7.30 a.m. spoke reasonably and intelligibly to the man who let him in, hung up his overcoat and umbrella, walked upstairs and collapsed. Death occurred about 10.30. a.m." The learned counsel for the appellants Sri Chaturvedi further pointed out that it has been said and also as evident from the site plan prepared by the Investigating Officer that the place marked with No.2 is on the south-west from the place 1 where Girendra Singh had fallen after receiving the injuries which is on a distance of 80 paces from place 1. The field through which deceased Sri Dayal was running was of what and gram. Crops are not harvested in the month of February when the incident took place. The Investigating Officer had not shown in the site plan that the crops were trampled in any manner when the deceased had run from place I to place 2. There is no indication of any damage or mark of trampling where the other five accused persons had reached and said to have assaulted Sri Dayal with lathi and ballam. Sir Chaturvedi submitted that in view of the fact that there was no mention of the second place where Sri Dayal was actually assaulted with spear and lathi by other five accused or any mention that he had run 70-80 paces after receiving the gun shot from Sia Ram. It was admitted in the statement of PW Kalkain that ripe crop was standing on the plot of Sunder Chamar where Sri Daval had fallen. Sri Chaturvedi also seriously commented the evidence of PW 1 Dr. P.N. Awasthi. He submitted that the Doctor interested for performing the post-mortem in the present case remained as a scribe. From his evidence, it was shown that he had conducted the post-mortem examinations and it is the Jamadar who actually conducts the actual incision work although he stated that he got these done under his supervision, The important fact to be noted is that three teeth were recovered by the Investigating Officer alongwith the two pieces of bone from the place of occurrence from where the dead body of Sri Dayal was recovered. In the post-mortem examination Dr. P.N. Awasthi in his report stated that Sri Dayal had 32 teeth present which apparently is false and is contradicted by the statement of the I.O. and the recovery witnesses of teeth and bone. The witness Dr. P.N. Awasthi tried to justify what he has stated in the post-mortem report of Sri Dayal. He stated in the cross-examination that after examining the injuries, he had verified himself the injures. He denied that there was no possibility of fracture of 3 teeth. He said that without seeing the teeth, how could he write that 30 teeth were present. Either this witness is a her or the prosecution cooked up and manufactured evidence to show that in the assault 3 teeth of Sri Dayal had been broken. PW 15 Constable Riazul Hasan was examined to prove the recovery of charras, dead kartus, broken teeth and three pieces of bones. The learned A.G.A. pointed out that Siya Ram, accused appellant had taken leave for three days. His application for leave was proved by PW 9 Sri Nath Chaturvedi. He had also stated that he was on leave upto 27.2.76 out of Kanpur. He had also proved from the G.D. that Sita Ram had left at 3 p.m. on 24.2.76 and reported back on 28.2.76 at 10.15 A.M. after 3 days. Sri Saxena submitted that the recovery of the gun and the used cartridges from the gher of Siya Ram and Narain Das accused coupled with the evidence of PW 14 Sri Ram. Fire Arm Expert fully shows that the said gun was used and the deceased Girendra Singh and Sri Dayal had received gun shot at the said fire arm. He submitted that the evidence of Lochan Singh (PW 10) and Kalkain is fully corroborated by the evidence on recovery of the. fire arm from his gher and Expert opinion about the user of the said gun in the assault of the two deceased. After hearing the learned counsel for the appellant Sri G.S. Chaturvedi and learned A.G.A. Sri K.C. Saxena and perusal of the record, we are of the opinion that the evidence of PW 10 Lochan Singh and PW 8 Kalkain do not inspire confidence for reliance. The manner in which the informant Lochan Singh and Kalkain (PW 8) said to be present at the time of the incident to enable them to witness the assault, does not appear to be free from doubt. There was no reason or such circumstances which may show that Kalkain would also come and join while coming back. Kalkain had stated that Sri Dayal was also hit by Charras of the first fire. This witness can exaggerate the prosecution case by mere imagination is not a witness on whom the implicit reliance can be placed. It is correct that it is not possible or expected from a witness to see exactly as to how and in what manner the injured received the injuries in great detail. The prosecution has not explained as to why the natural and independent witnesses who are said to be there at the time of incident, were not examined in the case. It is only the inimical witnesses whose veracity is not above doubt have been examined. There may be a motive for the accused persons to have committed an offence. It cannot be said that there was no motive or cause for false implication of the accused persons. The manner in which the incident took place and the distance. as alleged by the prosecution that Sri Daval ran 70 paces after receiving the gun shot causing fracture of the scul bone and rupture in the bone. In view of the Doctor, a person is to be become unconscious soon after such injuries are caused. The instance cited from Taylor's jurisprudence, quoted above, is of no universal application Had the prosecution proved by the other evidence that the field over which crop was standing, the deceased Sri Dayal had run trampled the crop or the place where the dead body was found was trampled and admitted as prosecution case is that at the said place also 5 other accused persons assaulted the deceased Sri Dayal. The prosecution if relied on the statement of a Doctor, who himself shirked his responsibility in conducting the post-mortem examination and delegates the actual incision work cannot be said to have performed his duty cast upon him and his report is not above-board. It is to be noted that in such cases the evidence of the Medical Legal Expert assumes great importance. The manner in which the post-mortem examination was got conducted b} Dr. P.N. Awasthi (PW I ). through his helper is condemned and from the record it is evident that there is sufficient motive and enmity for the informant to implicate the accused persons in the case. After considering the entire facts and circumstances of the case, we are of the view that the prosecution evidence is not above board and worth implicit reliance and the benefit of doubt is to be give to the appellant Siya Ram. Criminal Appeal No. 134 of 1979 is hereby allowed. The conviction and sentence awarded to Siva Ram is set aside He is on bail. his bail bonds are cancelled and sureties are discharged. Government Appeal No. 757 of 1979 State v. Siya Ram for enhancement, of the sentence awarded to Siva Ram is liable to be dismissed. in view of acquittal recorded in Criminal Appeal No. 134 of 1979. Government Appeal No. 1042 of 1919 against Chandra Bhan, Gajraj, Banmali, Khusi Ram and Narain Das against the acquittal, also deserves to be dismissed. The learned Sessions Judge acquitted them giving benefit of doubt. We have examined the entire evidence on record and heard the learned counsel. In para 38 of the judgment the learned Sessions Judge observed: "I have already found above that even the presence of Kalkain at the time of incident is held to be doubtful." The learned Sessions Judge himself had not placed implicit reliance on the statement of PW 8 Kalkain. The learned Sessions Judge while considering the evidence of PW 8 Kalkain and PW 10 Lochan Singh, considered the statement of PW. 6 Sukhey, who had stated that at about 5.30. P.M. on the date of incident, he saw all the accused persons going towards the village Chirgaon with arms in their hands. The witness has stated that accused Siya Ram was saving that he has taken the revenge of his father's murder but Girendra Singh had been unnecessarily killed. The accused Gajraj is alleged to have replied that there is no harm in killing Girendra Singh because whatever punishment is given for one murder, the same punishment will be given for two murders. The statement of this witness was disbelieved as the accused were not talked these things within the hearing of the third person. The witness appeared as a witness for the police in another case. The witness was, thus not believed by the Sessions Judge. PW 5 Khunju produced in the case was declared hostile. It was also stated by the accused Siva Ram in his statement that Lochan Singh, Shiv Ram Singh and Kalkain met him in the village Sajokhari at about 6. P.M. on the date of incident and told him that the accused had killed Girendra Singh and Sri Dayal. Thereafter, he alongwith Shiv Ram Singh and Kalkain came back on the spot of murder and Lochan Singli went to Thana to lodge the report. The statement of the witness Lochan Singh was disbelieved after appreciating the evidence by the learned Sessions Judge that village Barokhari of Lochan Singh is situate at a distance of 11/2 furlong from the place of murder. Therefore, they were naturally to go to their village and they would not come back to the spot again. The learned Sessions Judge declined to place the full confidence and repelled the evidence of the prosecution as to brothers of Siva Ram namely Chandra Bhan and Narain Das were made accused in the case. All the enemies of Lochan Singh have been made accused in the case. The statement of Lochan Singh shows that persons against whom litigation took place, have made accused. Similarly, accused Gajraj, Banmali and Khusi Ram were also inimical with Lochan Singh and were made accused in the case. The learned Sessions Judge as a fact after appreciating the evidence found that it was difficult to believe that Lochan Singh or Kalkain would be able to see even the remaining five accused with their arms, even though they suddenly came out of the hiding place from the Arhar field. The court below found that it appears that whether these witnesses were able to see the arms of all the remaining five accused. The witnesses must have themselves run away for their safety. Hence, he held that it was doubtful whether the remaining five accused have also participated in this crime or not. There are chances that some persons may be innocent in the remaining five accused. The learned Sessions Judge has given benefit of doubt to the five accused persons after appreciation the oral and documentary evidence examined by the prosecution The evidence on record by the court below after appreciating the evidence in no manner can be said to be perverse or against the evidence on record. The findings recorded are just and reasonable, in view of the facts, stated above. It is not safe to convict and sentence on mere suspicion or surmises. The learned Sessions Judge rightly given the benefit of doubt to the accused persons namely Chandra Bhan, Gajraj, Banmali, Khusi Ram and Narain Das. After hearing the learned A.G.A. Sri Sarena, and Sri G.S. Chaturvedi, learned counsel for the appellants, we are of the opinion that the Government Appeal No. 1042 of 1979 deserved to be dismissed. Criminal Appeal No. 134 of 1979 is allowed. Government Appeal Nos. 757 of 1979 and 1942 of 1979 are dismissed.;