1. This appeal was preferred by as many as six appellants who were convicted under Section 396, IPC and sentenced to imprisonment for life. No charge alternatively under any other section was framed nor they were prosecuted for the said charge. Out of these appellants Shiv Nandan, Babu Lal, Raja Ram and Anandi are now dead. The appeal of Babu Lal, Raja Ram and Anandi stands abated vide order dated 15-12-2003. The appeal of Shiv Nandan also stands abated vide order dated 30-1-2004.

2. We are left, therefore, with the case of only Gauri Shanker and Prabhat. Gauri Shanker is son of Shiv Nandan and Prabhat is son of Babu Lal. Shiv Nandan and Babu Lal were inter se related. All the accused persons, the informant and the deceased were residents of village Palwa, Police Station Khakhreru, District Fatehpur. As per the First Information Report a deep-seated enmity was pre-existing for the last 5-6 years. Rudra Prasad Vaish, the brother of Babu Lal was murdered:’ In that murder the informant his brother and some other persons were prosecuted. The trial according to the prosecution resulted into acquittal. The acquittal did not subside ani mus. The incident of Rudra Prasad's mur der took place 3-4 years before this incident. Three four months before the present inci dent a dacoity was committed in the house of Shiv Nandan and Gauri Shanker. In that case during the investigation, the informant, his son San tosh Kumar and Mithai Lal s/o Basudeo Singh were nominated. These accused persons, members of the present complainant party in the said case, were on bail. In between a proceeding under Section 107/117, Cr. PC. was also contested between the rival factions. Thus there is no dearth of evidence of intense inter se animus between these two families.

3. The occurrence had taken place be tween 0.30 hours to 1.30 a.m in the night. The report of the said incident was lodged by Hubraj P.W 1 at 7.00 a.m on the morning of the said date (17-7-1978).

4. In the incident three persons lost their lives. They are Santosh Kumar, son of the informant Hubraj P.W 1, Desh Raj, father of the informant and Basudeo, his cousin. The post mortem of first two was conducted by P.W 5 Dr. Som Sharma on 18-7-1978 from 5-40 p.m to 6-15 p.m The post mortem examination reports are Ext. Ka 4 and Ka. 5. Post-mortem examination on the body of Basudeo was conducted on 19-7-1978 at 10-30 a.m by P.W 7 Dr. Prakash Joshi. The medical examination of two injured Brij Rani. P.W 4, who is examined as an eye-witness and Rani Devi were held on 17-7-1978 from 4.00 p.m to 4.30 p.m Their injury reports are Ext. Ka. 2 and Ka. 3.

5. The prosecution in support of its case examined Hubraj P.W 1, the informant, P.W 2 Dhanraj Singh (minor son of the informant aged about 11 year), Smt. Brij Rant P.W 4 who belongs to the family of Basudeo. Apart from that one Ram Sanvari P.W 6 was also examined as eye-witness. Medical evidence has already been mentioned above by us. It is provided by P.W 3 Sri Mahtab Singh, Medical Officer and P.W 7 Shri Prakash Joshi Pathologist. P.W 8 Sri Nav Nihal Singh is the scribe of the First Information Report. He is a teacher. He has turned hostile and did not support the prosecution case on preparation of the written report. The inquest was conducted by P.W 9 J.K Singh Bhadoriya on the body of three deceased persons. Shiv Kumar Singh, Sub Inspector P.W 10 pursued the investigation and ultimately submitted the charge-sheet in the case against these appellants and those who died during the pendency of this appeal.

6. The First Information Report has itself alleged the participation of 8-9 unknown miscreants in the incident. The role in assault causing death of three deceased persons and two injured, was attributed to these appellants. It shall be pertinent to point out the weapon with which they were armed allegedly. Two of the appellants were armed with Karaull. They are Shiv Nandan and Babu Lal. Gauri Shanker (living appellant) and Prabhat and another similar person were armed with knife. The axes were with Raja Ram and Anandi and another person unnamed.

7. A perusal of the injury report of Brij Rani and the post-mortem examination report of Santosh reveals clearly the presence of two and one incised wound each on their person. The other deceased or injured have such injuries on their person.

8. So far as Brij Rani's incised wounds are concerned their seats and nature are relevant for our consideration. Her first incised injury is ½ cm × ½ cm over right side forehead and 3 cm × 1 cm on the right eyebrow. The other incised wound is on inner part of right upper arm 4.5 cm away from the arm.

9. So far as the injury No. 1 is con cerned it is on the forehead which is a bony part. Nothing about its margin was detailed in this injury by the Medical Officer. There fore so far as injury No. 1 of Brij Rani is concerned it can easily be the result of a lathi blow upon the bony part. The split in the skin may have given an impression of use of sharp edged weapon. However, injury No. 2 being on right upper arm 4.5 cm away from the right arm cannot be said to be an injury of a lathi. This is a muscular part of the body. Muscle and skin would be cut only by use of a sharp edged weapon.

10. Coming to other injury by sharp edged weapon caused to the deceased Santosh Kumar it is clearly discernible that the dimension is superficial 1″ × 2/10″ × bone on the right side head. Margins were found clean cut and the injury was spindle-shaped meaning thereby that a sharp edged circular weapon was used in his assault. It may be a weapon having sharp edges fixed in a bamboo stick or lathi. From its very nature it clearly appears to be a piercing injury. No such spindle shaped weapon was claimed to have been possessed by any ac cused.

11. In view of the above the use of a circular sharp edged spindle shaped weapon is discernible clearly in the case. The participation of as many as six persons with sharp cutting weapon was alleged by the prosecution, therefore, it completely negatives such a case. The fact as admitted by P.W 1 Hubraj indicates that all the murders and the assault upon two injured were committed by six known miscreants who had their faces coloured or painted with black. In the light of lantern and torches flashed by the miscreants he could not identify their contours and nominate them in the incident as those who committed these murders and injuries upon two Injured persons.

12. From the facts and circumstances discussed above and from the evidence of P.W 1 Hubraj we have hardly any doubt in our mind that it was a case of dacoity. Participation of unknown persons in good number, 7-8, was admitted to the prosecution. The fact alleged by P.W 1 Hubraj that none of the unknown miscreants plied their weapon in this incident does not impress us in the least. Some of the unknowns were having guns and kattas. There are large number of blunt object injuries upon all the deceased and the injured. Lathis were not attributed to any of the six appellants. This creates serious doubt in the truthfulness of his evidence. Presence of three incised injuries including one spindle shaped further weakens the case of assault by six known persons who were all armed with sharp edged weapon like khukhari, knife and axes but no spindle shaped sharps-cutting instrument.

13. In the circumstances his evidence I stands, refuted that the unknown miscreants did not participate in the assault of three deceased persons and two injured. The allegation of plying of sharp edged weapons by six known persons as alleged by the witnesses is largely negatived. Presence of large number of blunt object injuries upon the deceased and injured persons indicate clearly the participation in the incident of some lathiwala present amongst the miscreants. It has become abundantly clear from the medical evidence. Thus the testimony of Hubraj, P.W-1. cannot be accepted on its face. He clearly seems to have misdirected himself to wreak vengeance against his sworn enemies.

14. So far as other witnesses are concerned they have tried to corroborate Hubraj P.W 1. Once the evidence of this witness is discarded for material embellishment and falsity their evidence cannot become acceptable for the same reasons. Enmity is in existence. The occasion seems to have been used by the witnesses to vindicate their wrath upon these appellants due to hardcore enmity.

15. So far as the appellants are concerned four of whom have died, the possibility of their participation in the incident is not only remote but is by and large eliminated.

16. So far as living appellants Gauri Shanker and Prabhat are concerned it was suggested to the prosecution witness P.W 1 Hubraj by the defence that they were students and their participation is improbable. He pleaded ignorance in regard to the said suggestion. It is also admitted to him that Prabhat was aged about 17-18 years when the incident occurred. Gauri Shanker was studying in Saini Inter College and he was staying in the hostel is also admitted to this witness. The distance of this hostel from the village was 12-14 miles. Thus the participation of these two young men, within the age group of 16-17 years, iii uur opinion, is also highly doubtful on account of discussion made above. Animosity is a double edged sword. There is no dispute on the proposition. It cuts both ways. Earlier in the dacoity committed in the house of Shiv Nandan and Gauri Shanker some of the members of the family of the informant were made accused during the investigation. They were nominated in the First Information Report by Deshraj who was informant in that case. The animus would have been surging in their minds, as the said dacoity-incident was only 3-4 months old from the present incident. The dacoity was committed in the house of the informant Hubraj and Basudeo, the kith and kin of the informant, living adjacent to each other. The house of Basudeo was contiguous to the house of the informant. The present opportunity in the face of existence of serious animus could be easily availed of by the prosecution to involve the present appellants in the incident.

17. Only two sources of light were alleged for identification of dacoits, one is a burning lantern and the other is torches of the dacoits. So far as the light of the torch is concerned it will be falling on their faces. The known miscreants admittedly had smeared their faces with black. It would impair their identification by the witnesses. The lantern was haging on the outer chapper and most of the inmates were sleeping inside the house. It would be difficult to avail the light of this lantern by inmates.

18. P.W 1 Hubraj has also modulated his statement materially from his First Information Report and 161 Cr. P.C statement in trial Court on the pretext that he was not in full senses until then.

19. It is also surprising that there was no charge framed alternatively under Sec tion 302, IPC. It would have been proper to frame such a charge in a case of this na ture. Where deep seated enmity exists, the possibility of the participation of hardened criminals on the call of known persons who were on inimical terms with the family of the deceased cannot be ruled out. This we are stating in the judgment as a note of cau tion to the Sessions Judges who are trying such heinous offences not to be oblivious to the fact that come during the evidence. The charge could be amended at any stage during trial or an alternative charge can also be framed if the evidence so permits by af fording proper opportunity to the accused. The deceased were arrested in the dacoity case. It ought to have been reckoned with by the trial Court. In view of the discussion made above we allow this appeal. The surviving appel lants Gauri Shanker and Prabhat are not found guilty of charge under Section 396, IPC. They are acquitted for the above said charge. They are on bail. They need not sur render. Their bail bonds are cancelled and sureties are discharged.

20. Appeal allowed.