The main legal point established is the interpretation of evidence, credibility of witness testimony, and the application of relevant sections of the Indian Penal Code in determining the nature of the offence and appropriate sentencing.

( 1 ) THE two accused-respondents Hari Ram and Bansu, real brothers, were tried before the Sessions Judge, basti in S. T. No. 301 of 1980 for the offence punishable under Section 302 I. P. C. read with Section 34 I. P. C. for murdering their own brother Bhagwan Das. By judgment dated 2-4-1981 passed by Sri Chandra mohan, the then Sessions Judge, Basti, they were acquitted. Aggrieved, the State has preferred this appeal.

( 2 ) WE have heard Sri K. P. Shukla, learned A. G. A. from the side of the State and Sri Sanjeev Ratna, learned counsel for the accused respondents. The record of the lower Court has also been summoned before us which we have carefully perused.

( 3 ) THE relevant facts may be related shortly. The incident took place on 31-8-1980 at about 7. 00 a. m. in village sitarampur, Police Station Kalwari of District Basti and the report by oral narration was lodged on 31-8-1980 at 9. 25 p. m. by deceaseds wife Shanti Devi at Police Station Kotwali. The F. I. R. was sent to Police station Kalwari through a constable where a case was registered. The deceased bhagwan Das used to work in Bombay and send money out of his earnings to Bansu accused. He had come to the village some time before August 1980. On 31-8-1980 at about 7. 00 a. m. he was digging earth from old joint Khandhar for constructing cattle grove for his cow. Both the accused appeared there and asked him to dig out the earth from there. The deceased insisted to dig out the earth whereupon at the instigation of accused Hari Ram, the other accused bansu dealt a lathi blow on the head of the deceased. He fell down and then Hari Ram assaulted him with kicks and fists. Shanti devi wife of the deceased was nearby who raised shouts attracting the witnesses Nand lal, Sarva Deo and Udai Bhan. The accused retreated. The victim was taken up to road by his wife and daughter and from there in rickshaw to District Hospital where he breathed his last on 31-8-1980 at 7. 05 p. m. It was thereafter that Shanti Devi went to police Station Kotwali and lodged the F. I. R. by oral narration as stated earlier. Investigation was conducted by S. I. Ram Nath pw 5. On an information having been sent from the Hospital to the Police Station, an a. S. I, prepared inquest report and other necessary papers. Sealing the dead body, he sent the same for post mortem which was conducted by Dr. S. G. Tekriwal CW 1 on 1-9-1980 at about 5. 00 p. m. The deceased was aged about 38 years and the antemortem injuries found on his person were lacerated wound 4 cm x 1 cm x bone deep, with traumatic swelling on skull left side, 2 cm from midline 12 cm above the root of nose and multiple abrasions in an area of 10 cm x 5 cm front of right leg , 13 cm. below knee joint.

( 4 ) INTERNAL examination revealed ecchymosis and depressed fracture of left parietal bone 6 cm long. The death had occurred due to coma as a result of ante-mortem head injury.

( 5 ) AT the time of his initial medical examination (when he was alive) by Dr. D. P. Mishra CW 2 on 31-8-1980 at 9. 20 a. m. the same injuries were found.

( 6 ) THE defence of the accused was of denial. Their stand was that the deceased bhagwan Das was digging earth from dilapidated house and he was injured by the fall of a brick. Hearing his cries, they as well as other family members had rushed up and taken him to the hospital.

( 7 ) THE prosecution examined, in all, five witnesses. Out of them, Shanti Devi PW 1, astabhuj Prasad alias Nand Lal PW 2, Sarva deo PW 3 and Prem Narain PW 4 were examined as eye-witnesses. S. I. Ram Nath PW 5 was the Investigating Officer. CW 1 Dr. S. G. Tekriwal who conducted post mortem over the dead body of the deceased, CW 2 dr. D. P. Mishra who conducted initial medical examination of the deceased (whose reference has come to be made earlier) and cw 3 Dr. K. M. Chandra CMO, Basti were examined. The prosecution evidence did not found favour with the trial Judge in whose opinion the witnesses had fabricated a false case ag