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(5) It is the say of Shri Mishra, counsel for the appellant that the learned trial Court has committed an error in convicting and sentencing the appellant as there is some contradiction and omissions in the statements of complainant Jitendra (PW1), Makhan Singh (PW2), Veersingh (PW3) and the mother of complainant Kunwar Bai (PW4). It is further contended that Jitendra (PW1) and Makhan (PW2) who are stated to be eye-witness of the incident, have not fully supported the prosecution case and the learned trial Court without considering this aspect, has passed the impugned judgment which is not sustainable in the eyes of law. It is further contended that the present appellant has been convicted only on the basis of previous enmity and there is no direct or indirect evidence available against him, moreover, other circumstantial evidence are available for proving the alleged offence. Both the alleged aforesaid eye-witnesses, namely, Jitendra and Makhan Singh, who in their Court statements, have specifically stated that they had not seen the incident. Even other witnesses, namely, Veersingh (PW4) and Kunwar Bai PW-5 (wife of the deceased) have not supported the prosecution version. As per the merg intimation, the incident took place on 25-08-2010 at around 09:00 pm and information was received at 11:35 pm. On the one hand, as per evidence of Makhan Singh, the incident was happened at around 08:00 pm, as per evidence of Veer Singh, the incident was happened at around 09:30 pm and as per evidence of Kunwar Bai (PW5), the mother of the complainant, the incident was happened at around 07:00-08:00 pm and, therefore, there is some contradiction and omission in regard to time and place of incident and prosecution story rests upon suspicious by which appellant has been falsely implicated and the same is not sustainable in the eyes of law. Veersingh (PW4) is not the eye-witness of incident and he is a hearsay witness. Therefore, without considering the evidence of above-said witnesses, the learned trial Court has given its findings in para 61 of the judgment holding the appellant guilty of alleged offence, which is totally perverse and contrary to law. Hence, it is prayed that appellant deserves acquittal and impugned judgment deserves to be set aside.

(28) We have heard the learned counsel for the parties at length and perused the impugned record as well as the evidence of material witnesses.

(29) Complainant Jitendra Kumar (PW1) who is the son of deceased Jamuna, in para 1 of his examination-in-chief deposed that on the date of incident, Makhan (PW2) had brought his father deceased Jamuna to Kurwai for marketing at around 04:00 pm and at around 09:00 pm, Makhan came his house and told that four accused persons are inflicting injury to his father-deceased and thereafter, the complainant rushed towards field of one Lallu Malli and saw that accused Suresh, Parma, Asharam and Gulab are inflicting his father by means of axe and lathi. On haring his hue and cry, all accused persons fled away from spot. This witness further deposed that thereafter, they brought his father deceased Jamuna in the police vehicle to hospital where his father declared dead and afterwards, on the basis of merg intimation, an FIR was lodged. This witness in para 4 of his statement deposed that the Police had recorded his statement on the next day. This witness in para 5 deposed that due to previous enmity with co-accused Suresh, the murder of his father was committed. This witness in para 6 of his cross-examination deposed that a criminal case was going on against his father in regard to commission of murder of father of co-accused Suresh and co-accused Parma was the witness in that case. Prior to incident, a quarrel had also taken place between his children and children of co- accused Gulab. This witness in para 10 of his cross- examination deposed that he had gone alone with Makhan Singh to the field of Lallu Malli and no other person was accompanied him. This witness in para 11 of his cross- examination denied that there was any previous enmity with co-accused Parma and Gulab. This witness in para 13 of his deposition deposed that on the date of incident, his father had taken drink and gone with Makhan Singh by foot. The information regarding incident had given by Home-guard. This witness in para 15 of his examination-in-chief deposed that Hari and Dinesh had brought his father deceased Jamuna from the spot to the hospital. This witness in para 26 of his cross- examination admitted that there was no report lodged by him regarding threat given by accused persons to kill him and his father.

(30) Makhan (PW2) in para 2 of his evidence deposed that he along with complainant Jitendra, Preetam and Veer Singh reached back to the same place by bicycles. This witness deposed that Jitendra and Veersingh were ahead and both of us were followed them. The corpus of Jamuna was found there and no one was present there. When they went to the bus-stand to see them and returned back from there, the police jeep arrived at spot and the police brought Jamuna in jeep and took him to Kurwai Hospital and they reached thereafter. The corpus was kept in the police station and they went to police station and complainant Jitendra lodged report in police station thereafter. This witness in para 3 stated that there was an enmity of Jamuna with accused persons because of commission of murder of father accused Suresh and he had no knowledge about commission of murder of father of accused Suresh. This witness in para 5 of his cross-examination denied the information given by him regarding assaults by four accused persons to the father of complainant Jitendra and it is also denied that on reaching back to the spot, they saw that the accused persons were inflicting deceased and it is further denied that he is making a false statement to save the accused persons. In para 7 of his cross-examination this witness deposed since he was an illiterate, therefore, he cannot explain that the had police conducted written formalities of his memorandum or not. He also denied that co-accused Asharam had given any information about wielding lathi to the police. This witness in para 15 of his cross-examination admitted that when he again reached the spot, the police were carrying deceased Jamuna in a jeep and it is also admitted that he along with complainant Jitendra, Veer Singh and Preetam had gone to the police station on cycles behind the police jeep. In para 19 of his cross-examination, this witness admitted that there was a dispute regarding the land between Kanchhedi (father of accused Suresh) and deceased Jamuna. It is also admitted that on account of dispute of the land, murder of Kanchhedi was done. It is also admitted that a murder case of Kanchhedi is pending against one Gudda and deceased Jamuna. This witness denied that family members of Jamuna discussed about the compromise and also denied that on account of compromise in that case, complainant Jitendra has falsely implicated appellant- accused Suresh, who was of his friend as he wanted that the murder case of Kanchhedi be compromised. It is denied that on non-arriving at the compromise, he is making a false statement in collusion with complainant Jitendra. It is also denied that on the date of incident, he along with Jamuna were returning back from Kurwai after having taken drink. (31) Dr. AK Shrivastava (PW3) in his evidence deposed that on 27-08-2010 at around 09:30 in the morning, he had conducted postmortem of deceased Jamuna and found the following injuries over the body of deceased:-

(32) Veer Singh (PW4) in para 2 of his cross-examination denied that on the date of incident, he along with Makhan (PW2) and complainant Jamuna (PW1) had gone for marketing to Kurwai at 03:00 PM. He also denied that at around 09:30 in the night on the date of incident, Makhan arrived home by crying that accused persons are inflicting deceased Jamuna and this witness also did not support the prosecution story and declared hostile by the prosecution.

(33) Kunwar Bai (PW5) who is the wife of deceased Jamuma in para 5 of her cross-examination deposed that she had come to known about death of her husband Jamuna at 07:00 in the evening. She reached spot within an half an hour on receiving information. When she reached spot, she found that her husband was lying in the culvert near a road. In para 6 of her cross-examination this witness denied that police recorded her statement next day. In para 10 of her cross-