Nawal Kishore, C.J.—The accused Dhanna S/o Jeevraj and Jawana S/o Lakha were tried by the learned Sessions Judge, Bikaner for causing the death of Dhanna S/o Pema under section 302/34 of the Penal Code and convicted and sentenced to rigorous imprisonment for life each. 2. This appeal has been preferred by them against the above order of the learned Sessions Judge and argued on their behalf by Mr. J. G. Sethi, Bar-at-Law, of the Punjab High Court at considerable length and Mr. Mansharam, the learned Government Advocate has addressed us on behalf of the State. 3. According to the prosecution story, the two accused and a third person, namely Phoola, Bishnois by caste and residents of neighbouring villages, attacked the deceased Dhanna on the between the 22nd and 23rd of July 1949 while he was asleep with his son Rajaram in his field which is situate at a distance of about three miles from the village. The motive for this attack is stated to be the strained relations between the parties. It is alleged that Jawana and Phoola accused owed Rs. 1400/- to the deceased and on their refusing to pay, four or five persons interceded but the accused put forward a cross claim against the deceased to the tune of Rs. 1100/- alleged to have been taken by him from the wife of Jawana and stated that the amount due from them to the deceased will be liquidated as soon as the latter paid his dues. The deceased denied having borrowed any money and thereupon, the accused also refused to pay. The result was that the deceased sued Jawana and Phoola and Dhanna accused appeared as Jawanas witnesses, and the suit was dismissed. Jawana accused prosecuted the deceased under section 406 of the Penal Code and although Dhanna and one Manphool (it is not known whether he is the same person as Phoola accused) appeared as his witnesses. This prosecution failed and the deceased was acquitted on 18th of July 1919, that is 9 days before the occurrence. While the factum of the criminal case is fully established on the record as a copy of the judgment has been produced, the same cannot be said about the civil suit which is alleged to have been instituted by the deceased. While the factum of the criminal case is fully established on the record as a copy of the judgment has been produced, the same cannot be said about the civil suit which is alleged to have been instituted by the deceased. A copy of the judgment has not been produced and P. W. 4 Chhoga, who deposed to it, admitted that he had only heard about it. P. W. 1, Laloo, referred to this litigation in the first information report and also in his statement on oath but admitted that he had no personal knowledge and had only heard about it. P. W. 4 Chhoga also stated that the accused Dhanna & the deceased had fought with each other and Laloo also mentioned in the First Information Report that the deceased had beaten Dhanna accused five or six days before the occurrence. Beyond admitting that he had made the First Information Report, he did not depose to this particular matter in his statement. Be that as it may, the prosecution case is that on account of the civil and criminal litigation, the relations between the accused and the deceased were far from happy and that accordingly, actuated by feelings of revenge, the accused joined hands for the purpose of attacking the deceased. It was a pitch dark night and rain had fallen a few days before. It is stated that sometime during the day, on the 22nd of July 1949, the deceased and his son Rajaram, aged 12 years, had gone to the field for the purpose of ploughing it. After finishing with the ploughing, both of them decided to spend the night in the field. Accordingly, after taking their food, they slept on the same cot. At a distance of about too Paondas, there is another field belonging to Amichand who had also gone there in order to plough it and P. W. 3 Ramchand had joined for the purpose of helping him. At about midnight, Dhanna and Jawana, armed with lathies and Phoola armed with a Sela, went to the field of the deceased and inflicted a large number of injuries on his person It is alleged that as soon as the accused persons reached the spot, they felled both the deceased and his son from the cot and began to belabour the deceased. Rajaram began to cry and thereby attracted P. W. 3 Ramchand and Amichand to the spot. They saw that all the three accused were giving blows to the deceased and inflicting injuries on his person and Rajaram was standing near by and weeping. These persons reprimanded the accused and thereafter they left. The deceased died at daybreak. According to the evidence, his hands and feet were fractured and he was bleeding and his death was due to shock and haemorrhage caused by multiple grievous injuries. Rajaram was sent to the village and he informed Laloo and Harbhaj of what had happened. P. W. 1 Laloo, Harbhaj and a number of other persons visited the field and after confirming the information about the murder of Dhanna, Lalu went ahead to the Police Station for the purpose of lodging the report. The Thana is about nine miles from the field and this distance was covered on camel back. The First Information Report Ex. P. I which is a detailed document was lodged at 12 noon on 23rd of July 1949. Investigation was taken in hand and the dead body was sent for post-mortem which was conducted by Dr. Jogendra Singh on 24th of July 1949 at 5-45 P.M. The deceased was a healthy person and 30 years of age and according to the postmortem report, had received 22 injuries in various parts of the body with a sharp-edged weapon, while two injuries had been caused with a blunt weapon. In the opinion of the Doctor, these two injuries could also be caused by a fall on a hard substance. At the time of the post mortem, decomposition had set in and since there was no injury on a vital part of the body, in the opinion of the doctor, the deceased might have escaped death if he had been treated properly. The post-mortem report Ex. P. 6 showed the following injuries :— 1. Penetrating wound 1" x 1/2" at the acute angle of the right eyebrow reaching up to the eye ball penetrating it resulting in the collapse of the eye. 2. Penetrating wound 1/4" x 1/4" just at the upper bend of the sternum reaching up to the bone. 3. Penetrating wound 1/2" x 1/2" x 1/2 on the dorsum of the left hand in its middle. 4. 2. Penetrating wound 1/4" x 1/4" just at the upper bend of the sternum reaching up to the bone. 3. Penetrating wound 1/2" x 1/2" x 1/2 on the dorsum of the left hand in its middle. 4. Penetrating wound 3/4" x 1/2" on the left arm reaching up to the bone resulting in its fracture in its middle. 5. Penetrating wound 3/4" x 1/2" at the back of the left elbow reaching up to the bone. 6. Penetrating wounds four in numbers quite near to each other about 3/4" x 1/4" each in the front of the left leg resulting in comminuted fracture of both bones left leg near its middle. 7. Penetrating wound 1/4" x 1/4" just below the left knee reaching up to the bone. 8. Penetrating wound 1/2" x 1/2" on the right forearm on the media dorsal aspect resulting in fracture of both bones in Its middle. 9. Penetrating wounds eleven in number varying from 1/4" x 1/2" x 1/4" in the front, middle and lateral aspect of the right leg resulting in comminuted fracture of both bones in their middle.. 10. Right side chest lower part in mid axillary region some swelling some coagulated blood found in the S. C. Tissue no fracture. 11. Contusion 2-1/2" x 1/2" just below the right ear in the mastoid region. Some swelling and congested blood in S. C. Tissue seen no fracture. 4. The three accused were challan-ed under section 302 of the Penal Code in the court of the City Magistrate, Bikaner, who committed them to take their trial under that section in the court of the Sessions Judge. Phoola accused is absconding and accordingly, evidence was produced regarding the participation of the two accused namely, Dhanna and Jawana only in the commission of the offence. The accused denied having committed the offence and Jawana after admitting the litigation with the deceased stated that on the day of the occurrence, he was at Tandurwala. Dhanna accused simply denied having committed the offence. They produced two witnesses in defence. The prosecution produced P.W. 2, Rajaram, P. W. 3, Ram-chard, as eye-witnesses and P.W. 7 Mangalji and P. W. 8 Mahabatsingh who had seen the accused before and after the occurrence near the place of occurrence. Dhanna accused simply denied having committed the offence. They produced two witnesses in defence. The prosecution produced P.W. 2, Rajaram, P. W. 3, Ram-chard, as eye-witnesses and P.W. 7 Mangalji and P. W. 8 Mahabatsingh who had seen the accused before and after the occurrence near the place of occurrence. The prosecution also produced evidence regarding the recovery of lathies — one from Jawanas house at his instance and the other from Jawanas fencing at Dhannas instance. The lathies were, however, not blood stained. The witnesses alleged having identified these lathies as having been plied by Dhanna and Jawana but the learned Sessions Judge rightly disbelieved them on this point. He, however, believed P. W. 2 Rajaram and P.W. 3 Ramchand and also P.Ws. 7 Mangalji and 8 Mahabatsingh and convicted and sentenced the accused as stated above, 5. It may be pointed out that the deceased Dhanna and the three wit-nesses, namely, P.W. 1 Laloo, P.W. 2 Rajaram and P. W. 3 Ramchand are near relations as will be clear from the following pedigree-table which has been collected from the statements of these witnesses: Ridmal Roopa Vishna Girdhari Harbhaj Daugher Ramchand P.W.3 Laloo P.W.4 Dhanna (Deceased) Rajaram P.W.2 6. P.W. 1 Laloo and P.W. 3 Ramchand were cross-examined by the accused in order to establish that they were relations of the deceased and accordingly highly interested witnesses. P. W. 3 Ramchand categorically dented his relationship with P.W.1 Laloo. He, indeed, admitted that his grandfathers name was Roopa and that Roopas father was Ridmal. He, however, stated that he did not know whether the name of the grandfather of Harbhaj was also Ridmal. Similar questions were put to P.W.1 Laloo who stated that he did not know whether Girdhari and Roopa were P. W. 3 Ramchands father and grandfather and whether the grandfather of both Girdhari and Harbhaj was Ridmal. In the committing magistrates court, Laloo had however admitted that Vishna and Roopa were. the sons of Ridmal and he was accord-ingly faced with his previous state-ment. He adhered to the statement made by him in the Sessions Court and as regards the other, he deposed that he had not made such a statement. He even went to the length of staying that he and Ramchand belonged to the same village but were not related to each other. He adhered to the statement made by him in the Sessions Court and as regards the other, he deposed that he had not made such a statement. He even went to the length of staying that he and Ramchand belonged to the same village but were not related to each other. In our opinion, while P.W. 1 Laloo and P. W. 3 Ram-chand have deliberately lied and done their best to conceal their relationship with the deceased for the purpose of being treated as disinterested and independent witnesses, the statement made by Laloo in the court of the Committing Magistrate was nearer the truth and we have no hesitation in relying upon it and hold that both the witnesses are near relations of the deceased. Since independent testimony is not forthcoming in the case, we will have to examine the testimony of these witnesses carefully, and not accept it as true until it has been properly checked and found to be satisfactory. This is all the more necessary in view of the fact that these witnesses appear to be only too willing to depose to details as put in their mouth by those interested in the prosecution without making sure about their accuracy. We may refer in this connection to the statement of P.W.2 a and P.W.3 identifying the lathies Ex.P-A and Ex.P-B as having been died by Dhanna and Jawana respec-ively. It is established that on account of clouds, the night was pitch dark. Accordingly, it would be humanly impossible for anyone to state which particular lathi Was in the hands of either accused. The learned Sessions Judge also conceded this fact and rejected this part of the evidence as a result of police manipulation. The prosecution has also produced P.W.7 Mangalji and P. W. 8 Mahabatsingh for the purpose of showing that the accused had been seen by them both before and after the occurrence in the vicinity of the place of occurence. Although the learned Sessions Judge relied upon their testimony, the statements made by them cannot be easily held to pass for truth and we do not wonder that the learned Government Advocate has conceded frankly that he is not prepared to rely upon them. There is one more factum to which we must advert before delving into the arguments addressed at the bar and this relates to the tracks found on and near the spot. There is one more factum to which we must advert before delving into the arguments addressed at the bar and this relates to the tracks found on and near the spot. Mr. Sethi argued that P. W. 5 Chhoga followed the tracks for half a mile and somehow was not allowed to join the identification parade. One Ishar joined the parade but was not produced as a witness. Further, while according to Ramchand, two tracks were of boots and one of Jooti, according to Ex. P-2 and Ex. P-9 the site plan and its description, prepared by the police on the spot, one of these tracks was of a person who was bare footed. The track evidence has not been developed on the record, and according to Mr. Sethi, this was due to the feet it was not favourable to the prosecution, Such then is the unhappy condition of the evidence in this case and stated already, it will not do, merely to look at the case from the surface. It is absolutely essential, in lour opinion, that the evidence produced by the prosecution must be subjected to every possible check provided by law or materials on the record and should not be relied upon until we are satisfied that it is incompatible with the innocence of the accused. 7. The learned Government Advocate has urged that the prosecution version is supported by two witnesses, namely, P. W. 2 Rajaram and P.W. 3 Ramchand. The presence of Rajaram is proved by the statements of P.W. 3 Ramchand and P. W. 1 Laloo as mentioned in the First Information Report as the person who had conveyed the information to him. Rajaram has given the entire version from beginning to end and there was very little cross-examination. Similar was the argu-ment with regard to the statement of P. W. 3 Ramchand who had reached the spot on hearing the cries, seen the injuries being inflicted and sent Rajaram to the village while he himself remained with the deceased. His presence was admitted by P.W. 2 Rajaram and also by P.W. 5 (Chhoga who had reached the spot after the incident. His name was also mentioned in the First Information Report. If this were all in the case, the prosecution version might be said to have been established on the record. Mr. His presence was admitted by P.W. 2 Rajaram and also by P.W. 5 (Chhoga who had reached the spot after the incident. His name was also mentioned in the First Information Report. If this were all in the case, the prosecution version might be said to have been established on the record. Mr. Sethi has, however, by a lengthy and able argument, shown that the statements of these witnesses, highly interested as they are, cannot be relied upon. The fact regarding Ram-chand having lied so far as relationship was concerned was very much emphasized by him during the course of his arguments. This, however, by itself is not sufficient for holding that he had also lied while narrating the principal events, as the maximum falsus in uno falsus in omnibus has long been exploded. We will therefore examine the entire deposition carefully. The version delivered by P. W. 3 Ramchand is sketchy and completely denuded of important details. The field where he was sleeping along with Amichand is stated to be at a distance of 100 Paondas from the scene of the occurrence and it is strange that when they rushed in the direction from where the cries were being heard, they them-selves raised no alarm in order to collect as many persons as possible and thereby make it safe for themselves so that when they reached the spot, there may be no possibility of an attack upon them from the assailants. The prosecution story is that Ramchand quietly came to the scene of the occurrence after hearing the cries. He brought no weapon—lathi or something else—for his own defence. Such -a conduct on his part appears to us to be a little out of the ordinary. It must have taken him sometime to cover the distance of 100 Paondas and sometime must also have elapsed when the beating started and the cries of the boy reached P. W. 3 Ramchand. The total number of injuries inflicted on the deceased was 24. It is a question for a serious consideration whether by the time the witness arrived, the beating had not finished. In any case, we are not prepared to believe that the deceased took the beating without any opposition or resistance. One would expect from an eye-witness that he would describe the part played by the assailant as well as the victim. In any case, we are not prepared to believe that the deceased took the beating without any opposition or resistance. One would expect from an eye-witness that he would describe the part played by the assailant as well as the victim. Ramchand, however, has not a word to say with regard to what was being done by the deceased while beating was being given to him. The sort of state-ment made by him can be easily made even by a person who has not seen the incident with his own eyes and had it described to him by others. He does not state that the accused while giving a beating were shouting, abusing or making any other noise which would make their identification possible. It is strange that on a pitch dark night, the witness had absolutely no difficulty in recognizing the accused persons and not only this, even in identifying the Dangs plied by them. His own field is at some distance and it is a wonder that he did not choose to plough it and instead came to help Amichand for the purs-pose of ploughing his field. P.W.1 Laloo has stated that Ramchand had been ploughing his field throughout whereas the latter has completely denied this fact. The reason appears to be obvious, for, if there was cultivation going on in his field, he could not satisfactorily account for his presence in the field of another person. It is further strange that he had never before been called to help Amichand in ploughing his field and although the ploughing finished during the day, he slept with him at night on the same cot and did not choose to go back to his own field although he could easily do so. The learned Government Advocate has not been able to resolve the doubts an 1 difficulties raised by the above contentions. Inspite of the fact that Laloos statement in the Committing Magistrates Court set up the relationship of the witness with the the deceased, the learned Government Advocate still argued that he was not a relation of the deceased at all. The learned Government Advocate has not been able to resolve the doubts an 1 difficulties raised by the above contentions. Inspite of the fact that Laloos statement in the Committing Magistrates Court set up the relationship of the witness with the the deceased, the learned Government Advocate still argued that he was not a relation of the deceased at all. With regard to the fact that the witness did not shout or raise any alarm while rushing towards the scene of occurrence, the learned Government Advocate submitted that this was a matter within the knowledge of the witness himself who accordingly should have -been cross-examined We consider this is not a proper way of looking at the case. The conduct of the witness raises a doubt regarding his presence on the spot and a heavy duty lies on the prosecution to dispel all doubt. As regards Laloos contradiction of Ramchands statement about the ploughing of his own field, the learned Government Advocate was not able to give any satisfactory reply. So far as the statement of PW.2 Rajaram is concerned, it is of a highly cryptic nature. It is extremely brief and details of the attack are completely lacking. It also shows as if the witness had been tutored. The time of the actual occurrence with which we will deal elsewhere was of considerable importance. Rajaram stated that he and his father went to sleep after taking their food, "Dhalti rat". The learned Government Advocate argued that although Dhalti rat occurred in connection with the father and son having gone to sleep after taking their food, it should really speaking be read with the arrival of the accused on the spot. That would indeed be the proper place for this phrase to occur as the village people do not normally take their food after midnight but this is not how the witness stated. It was argued that the witness may have been tutored and he only remembered that this phrase had to be mentioned somewhere and he did so in the wrong context. Another indication of tutoring emerges from the fact that he also identified the Dangs. Further Mr. It was argued that the witness may have been tutored and he only remembered that this phrase had to be mentioned somewhere and he did so in the wrong context. Another indication of tutoring emerges from the fact that he also identified the Dangs. Further Mr. Sethi has argued that a lad of 12 years would not normally keep standing to see the beating being given to his father as he would himself be in fear of being subjected to it and, therefore, it would be a natural impulse on his part to run as far away from there as possible. That would not only make it safer for him but also enable helpers to come round in order to save the victim. We consider that there is force in this contention for, if nothing else, the assailants would not allow the boy to cry aloud and thereby attract persons to the spot and expose them to the danger of being caught red-handed. They would have either done this or, as urged by Mr. Sethi, not allowed the by to go scot-free. After all, they had come to avenge themselves upon the father and would they spare his son without inflicting, a single injury on his person. Not only this; it is again rather strange that although two grown up persons, namely, P. W. 3 Ramchand and Amichand, who has not been produced, had arrived on the scene of occurrence, they chose to send a lad of 12 years of age to the village in order to convey the information. In the normal course of things, since both of them were eye-witnesses according to the prosecution, one of them would have gone to the village and either left the boy behind with the other of taken him to the village with himself. The learned Government Advocate has tried to meet this position by arguing that injuries were not inflicted on Rajarams person as he was a boy of tender age and the accused had not come determined to destroy the entire family. As regards the conduct of the boy in standing near the father and continuing to cry and not running away from there, the learned Government Advocate conceded that it was difficult to offer any explanation. As regards the conduct of the boy in standing near the father and continuing to cry and not running away from there, the learned Government Advocate conceded that it was difficult to offer any explanation. He submitted that possibly, the boy was dazed and did not know what to do or that there were persons in the neighbouring field to whom he might go for help. Accordingly he stood there and cried and this was but natural. In our opinion, the conduct of the boy is not satisfac-torily explained. His cries, according to the prosecution, succeeded in attracting two persons but whatever might have happened, the accused would not have allowed him to stand there and inform everybody within earshot that something unusual was happening there and they should rush and see what it was. The beating given to the deceased was merciless and it is difficult to hold that where the assai-lants are in such a mood they would have any tender feelings for the son of their victim, A complete lack of details regarding the manner in which the fight began and the part played by the deceased is another factor which makes it very difficult for a court of law to hold that the witness was present on the spot and had seen the occur-rence. 8. Mr. Sethi has further contented that one important check regarding the truthful character of the statement made by P.Ws. 2 and 3 is furnished by the medical evidence. According to these witnesses, all the three accused had given a beating to the deceased A reference to the post-mortem report Ex. P-6 and the statement of P. W. 6 Dr. Jogendrasingh shows that 22 out of 44 injuries were penetrating or what is the same thing punctured wounds, caused by means of sharp edged weapons while only injures Nos. 10 and 11 had been caused by lathies and with regard to these, the Doctors opinion was that they may have been caused by a fall. If the statements of the eye-witnesses had been correct and if it were true that all the three accused were giving the beating, there would have been a sufficient number of injuries caused by lathies as well. The medical evidence discloses that the two accused practically played no part while Phoola, who was armed with a sharp edged weapon, was busy inflicting the injuries all the time. The medical evidence discloses that the two accused practically played no part while Phoola, who was armed with a sharp edged weapon, was busy inflicting the injuries all the time. The learned counsel has contended that since the statements of the witnesses are not supported by the evidence of the medical expert, it must be held that they were not there on the spot and had not seen the occurrence. We consider that there is force in this contention as well. Where an interested witness makes a verbal statement as regards the existence of certain facts, and it is possible for the court to put it to a test in the light of checks available on the record, it should not be easily accepted unless it is corroborated and stands the test. The important check available in this case consists of the post-mortem report and since it shows almost all the injuries inflicted with sharp edged weapons, the statements of the witnesses that all the three accused were inflicting injuries when they saw them cannot be accepted as true and must be rejected as false. The learned Government Advocate has argued that injuries Nos. 6 and 9 consisted of comminuted fractures underneath the penetrating wounds and that these could not but have been caused by lathies. It is a strange coincidence that the fractures existed under the penetrating wounds but how is it possible for this Court to hold that the fractures had been caused by lathi blows inasmuch as P. W. 6 Dr. Jogendra Singhs statement is clear to the effect that they had been caused by sharp-edged weapons. Further the lathi blows inflicted with a force sufficient to result in such injuries would in all probability be accompanied by contusions or contused wounds but admittedly, these were not there. The learned Government Advocate argued that the body was in a state of decomposition at the time of the post-mortem. examination and owing to discolouration of the skin, contusions had disappeared. There is, however, no support tot this position on the record. As it is, injuries Nos. 10 and 11 which had admittedly been caused by blunt objects had resulted in contusions and inspite of decomposition were visible and had been noted by the medical expert. The latter was not asked whether what the learned Government Advocate is urging was possible. There is, however, no support tot this position on the record. As it is, injuries Nos. 10 and 11 which had admittedly been caused by blunt objects had resulted in contusions and inspite of decomposition were visible and had been noted by the medical expert. The latter was not asked whether what the learned Government Advocate is urging was possible. In any case, before it is held that decomposition had resulted in discolouration of the body and the consequent disappearance of the contusions, there must be evidence to show that the fractures were the result of lathi blows. This evidence is not forthcoming. The learned Government Advocate asked for an opportunity to produce the doctor again but in the first instance, it would not be possible for him to remember anything as he would only repeat at this distance of time what was contained in his register. Again even the Investigating officer also noted these injuries to have been caused by Sela in his forwarding note to the medical officer Ex. P-7. It would therefore not be fair to the accused to allow the prosecution to set up a different case or to patch up the weak parts of its case. 9. While making a reference to the various injuries received by the deceased, Mr. Sethi contended that they appear to have been given in a leisurely manner and that this could only be possible where the assailants were not afraid of being seen by any-witnesses. He put forward this argument for the purpose of showing that the alleged eye-witnesses were not present on the spot at all as otherwise the assailants would have done their work quickly and run away after inflicting a few injuries in vital parts of the body. There is some force in this contention also and although not conclusive by itself, along with the other circums-tances which have been discussed in detail elsewhere, it further strengthens the position that the occurrence was not seen by anyone. 10. So far as track evidence is concerned, it is generally not of much avail but Mr. Sethi has referred to an aspect of the case relating to this matter only to show that if it had been forthcoming, it would have further weakened the case for the prosecution. Ex. P-2 and Ex. 10. So far as track evidence is concerned, it is generally not of much avail but Mr. Sethi has referred to an aspect of the case relating to this matter only to show that if it had been forthcoming, it would have further weakened the case for the prosecution. Ex. P-2 and Ex. P-9 duly proved by P.W. 9 Charansingh, Inspector Police, clearly show that one of the persons, whose tracks led to a goodly distance from the spot, was bare footed. No doubt, P. W. 5 Chhoga who had covered the tracks was not made to join the identification parade but he saw them, and found that out of the three tracks covered on the spot, two were those of persons wearing boots while one of these was of a Jooti, This is supported by P. W. 3 Ram-chand. Both these statements, however, are contradicted by the documentary evidence consisting of Ex. P-2 and P-9. This is another important check furnished by the record and on applying it to the statements on the record, we cannot but come to the conclusion that Ram-chand and Chhoga are both indulging in lies. 11. Mr. Sethi next argued that the eye-witnesses would at least know the time of the occurrence, and the time of the death of Dhanna and that if there was interval between the two and they were present, they would not allow him to bleed to death and apply such crude methods as were familiar to them for the purpose of stopping the continuous flow of blood which ultimately resulted in death. Now, so far as the time of the;, occurrence is concerned, P. W. 3 Ramchand deposed that he heard cries of Mare re Mare re at about midnight. In cross-examination, several questions were put to him in order to test his veracity and the answers given by him tend to show that he was suppressing the truth. He stated that he could not say how many Gharies, of the night had passed when he arrived on the scene of occurrence. He could not even say how many Pahar or Gharies after his arrival, the day had dawned. He further stated that Dhanna had died after the day had dawned. He stated that he could not say how many Gharies, of the night had passed when he arrived on the scene of occurrence. He could not even say how many Pahar or Gharies after his arrival, the day had dawned. He further stated that Dhanna had died after the day had dawned. So far as P. W. 2 Rajaram is concerned, he did not mention definitely what the time of the occurrence was or even the time of his fathers death. We have already referred in detail to the use of the phrase "Dhalti rat" in his statement and while it is difficult to connect it with any precise hour of the night, he stated that shortly after the accused had run away, his father died. Now, if it is correct that the, father died in the morning, then the statement made by Ramchand is palpably wrong. If, however, Ramchand is right, then his conduct in allowing the victim to bleed to death without, informing anyone in the village or taking steps to dress the wounds, however crude the dressings may be remains, unexplained. The learned counsel has tried to fix the time of the occurrence at some-where near midnight by reference to the post-mortem report according to which the stomach of the, deceased was in a healthy condition but contain-ed particles of semi digested food. The learned counsel argued from this that the deceased must have taken his food at about 8 O clock and that it must have taken 3 to 4 hours for all the food to pass, out of the stomach leaving behind only fatty food which it takes longer to digest. Mr. Mansha-ram on the contrary has contended that the food must have been taken very late as otherwise it; would not have been in a state of semi digestion at the time of the deaths. Here again, some assistance should have been taken from the medical expert if there, was evidence alto when the deceased took his food and what, he ate. It is, a medico legal question and as stated in Modis Medical Jurisprudence, points to be noted in ascertaining the, time of death are warmth or cooling of the body, rigor mortis and several, other factors. It is, a medico legal question and as stated in Modis Medical Jurisprudence, points to be noted in ascertaining the, time of death are warmth or cooling of the body, rigor mortis and several, other factors. In addition to these, the time of death can be ascertained with some possibility from the degree of digestion, of the stomach contents: and from the condition of bladder and intestines as regards their contents. The degree of digestion of the contents, however, cannot always be relied upon, in determining the time of death, in as much as the power of digestibility may remain in abeyance for a long time, as, mentioned by Modi, in states of privation, shock and coma. Food consisting.of rice and Dal has been found to remain in the stomach for about 40 hours without undergoing digestion. Accordingly, it would be futile to try to fix even the approximate time of the occurrence on the above data, when the witnesses- themselves have failed to give us the required information. We have dealt with this aspect of the case in detail as the learned counsel developed at some length his contention that considerable delay had occurred in making the first information report. Since it is not possible to hold definitely at what time the offence was committed, it is equally difficult to say that delay had occurred in making the. first informa-tion report. 12. So far as the evidence of motive is concerned, it is indeed week but in the view taken by us, it is not at all necessary to deal with it. 13. For all the. reasons mentioned above, we find it very difficult to uphold the conviction of the accused on the record as it stands. The result is. that thisappeal succeeds and is accepted and the convictions and, sentences awarded to the accused set aside. The accused are hereby acquitted and shall be set at liberty forthwith. 14. Before parting with the case, we may point out that in criminal cases, since the accused is presumed to be innocent till he is found to be guilty, statements of the prosecution witnesses should be forthright, give complete details without leaving gaps which may create doubts and, should stand scrutiny in the light of checks available on, the record or otherwise. The learned Sessions Judge in this, case took a highly superficial view and did not take the troubles of subjecting the sketchy oral evidence to various tests. He even committed an illegality in referring to the record of the, Committing Magistrates Court for the purpose of holding that the prosecution had withheld Amichand because he had become hostile. The record of that court is not evidence in the case and it was not open to the, Sessions court to draw any, inferences or arrive at any conclusions on its basis. 15. Another mistake committed by the learned Sessions Judge was that before P. W. 2 Rajaram a lad of 12 years of age, made his statement, he simply cautioned him to tell the truth and thereafter without satisfying him-self, he proceeded to record the state-ment. Under section 118 of the Evidence Act, it is imperative that the court should test the competency of a child witness before examining him. It should indeed test his intellectual, capacity by putting a few simple and ordinary questions and also judge the competency of the witness during the course of his, examination and say something to that effect after the statement is over so that the appellate court may feel satisfied as to the capa-city of the child to give evidence.