JUDGMENT Roy, J. - This is an appeal by Lalsaiyya alias Lal Sahai, who has been convicted u/s 201, IPC, and sentenced to seven years' rigorous imprisonment and also u/s 302, read with S. 34, IPC, and sentenced to death. Along with the appeal there is before us the usual reference for confirmation of the death sentence. There was a co-accused by name Ram Dayal alias Ramdilla, who was charged under the same sections but he was acquitted by the learned Sessions Judge. 2. The story for the prosecution was that Smt. Ganga Devi (PW 3) was married to Randhira deceased about three years before the present occurrence. Smt. Ganga Devi and Randhira lived happily for sometime. Randhira suspected the fidelity of Smt. Ganga Devi and began to ill-treat her About two months before the present occurrence Lalsaiyya Appellant, it is alleged, developed illicit intimacy with Smt. Ganga Devi. This came to be known in the village and was resented by Randhira, who used to be on the look out of an opportunity to beat Lalsaiyya. The prosecution contended that four or five days before the incident Randhira went to a fair at Jarar and remained absent from his house for three or four days. During this time Lalsaiyya forced his company on Smt. Ganga Devi and was seen visiting her house by the people of the village. On his return Randhira was told about this by Smt. Ganga Devi herself. It was contended that on the night between 13 and 14 April 1956, at about the break of dawn Lalsaiyya and Ram Dayal attacked Randhira who was sleeping on a cot in the courtyard in front of his house. Smt. Ganga Devi was sleeping on a cot nearby. She woke up on hearing Randhira's shouts. Her mouth, it is alleged was gagged and she could not raise an alarm. The prosecution contended that Lalsaiyya sat on the chest of Randhira and caught hold of his hands and Ram Dayal gave blows with a gandasa (Ex. 1)Randhira, who was a strong man struggled hard and managed to free himself. He fell on the ground and thereafter he was given a few more blows and he died on the spot. The two accused set about to obliterate the traces of the murder. 1)Randhira, who was a strong man struggled hard and managed to free himself. He fell on the ground and thereafter he was given a few more blows and he died on the spot. The two accused set about to obliterate the traces of the murder. It is alleged that they compelled Smt. Ganga Devi to scrape the blood stained ground underneath the cot and to plaster the place with cow-dung. They also directed her to cut the blood stained portion of the cot and they made her wash the cot and her clothes. Thereafter they tied the dead body in a piece of gunny and carried the corpse to a neighbouring cave. They also threatend Smt. Ganga Devi not to make the disclosure of the matter to anyone and told her that she should tell the people, if they come to make an enquiry, that five men had come, two being armed with guns and had taken Randhira with them across the Chambal and that Randhira would be away for a month. Smt. Sumeria alias Umaria, who was Lalsaiyya's elder brother's wife had lost her she buffalo and she came to Randhira's house. The prosecution contended that she saw the two accused carrying away the corpse and on enquiry was told by Smt. Ganga Devi that Randhira had been killed by the accused. In the village Smt. Ganga Devi gave out that Randhira had left the village in the circumstances stated above. The village people however, saw freshly plastered earth and a portion of the charpai cut. After some delay Smt. Ganga Devi came forward with the truth. Chaukidar Sunder Singh (PW 4) came to know of the occurrence at his threshing floor at about 10 a.m. He came to the village and talked with the people of the village, who had collected at Randhira's house, talked to Smt. Ganga Devi as well, went to the cave where the corpse was and thereafter he proceeded to the police station Jaitpur, which was at a distance of about five miles from the place of occurrence and there he lodged the first information report at about 12-30 in the day. Investigation followed. The blood stained earth was recovered from the scene of occurrence. The gandasa (Ex. 1) is said to have been recovered at the instance of the accused. The dead body was sent for post mortem examination. Investigation followed. The blood stained earth was recovered from the scene of occurrence. The gandasa (Ex. 1) is said to have been recovered at the instance of the accused. The dead body was sent for post mortem examination. The medical evidence disclosed that the deceased had no less than twenty injuries, most of which were incised wounds and others were abraded contusions and abrasions. The skull bones were found fractured. There was laceration of the brain. The fourth cervical vertebra was cut through and through and dislocated and at the same level the spinal column was cut. through. In the opinion of the doctor who conducted the post mortem, death was due to shock and haemorrahage on account of the injuries on the head and neck. 3. The factum of murder cannot for a moment be disputed. The question is whether the murder had been committed by the Appellant as alleged by the prosecution. The prosecution story as unfolded in Court and as stated in the first information report was that the occurrence took place at the break of dawn. We have not been able to find out anything from the record which should have justified the learned Sessions Judge in coming to the conclusion that the occurrence took place at about 2 O' clock in the morning. Even Smt. Ganga Devi PW 3 an alleged eye witness on whom the learned Sessions Judge relied stated that when the murder was committed dawn had broken and people were going out for easing themselves. That would not bring the time of the occurrence to 2 a.m. The dawn could not have broken at that hour on 14-4-1956. The Sessions Judge himself remarked that on that day the break of dawn was at 5-40 in the morning. 4. Both the accused persons pleaded not guilty. Lalsaiya contended that he had no illicit connection with Ganga Devi; that Randhira had no grudge against him on that score; that he did not commit the murder nor did he play the pan assigned to him by the prosecution and that he did not threaten Ganga Devi and did not remove the corpse; that he made no extra judicial confession of the murder and that no recovery was made of the gandasa at his instance. To similar effect was the plea taken by Ram Dayal the coaccused. 5. To similar effect was the plea taken by Ram Dayal the coaccused. 5. On behalf of the prosecution fifteen witnesses were examined. Leaving aside the formal witnesses the rest of the evidence, apart from the medical evidence may be classified under the following heads. Under the first category we have two witnesses namely, Smt. Ganga Devi PW 3 and Tulla PW 6 who came as eye witnesses of the occurrence. The next category consists of two witnesses Smt. Sumeria PW 5 and Gopi PW 7 who were alleged to be the witnesses who had seen the two accused removing the corpse. Then we have three other witnesses namely, Basant Puri PW 8 Mihi Lal PW 9 and Bharat Singh PW 10 who gave evidence of the extra judicial confession by the two accused. We have also the evidence of Brindaban PW 12 who was produced as a witness for the recovery of the gandasa Ex. 1 at the instance of the Appellant. The learned Sessions Judge disbelieved Smt. Ganga Devi on a number of important paticulars in the case. He refused to treat her as an accomplice in spite of the fact that she kept mum at the time of the commission of the offence and even thereafter and she wanted to conceal the factum of murder by throwing out a suggestion to the residents of the village that Randhira had left the village in the company of certain people for a period of one month. The learned Sessions Judge relied upon the testimony of Smt. Ganga Devi only in relation to part of the matter namely that it was the Appellant who sat on the chest of the deceased when the murder was committed and he disbelieved her when she stated that the deceased was hacked by Ram Dayal the other accused. Smt. Ganga Devi's statement did not fit in with the medical evidence in the case, apart from the other contradictions which she introduced into the story by her testimony. According to Ganga Devi Lalsaiya the Appellant was sitting on the chest and was holding down both the arms of the deceased and he got up only when Randhira was killed. She went on to state that Randhira had struggled and had fallen on the ground and that after that the accused did not cause any injuries to him. According to Ganga Devi Lalsaiya the Appellant was sitting on the chest and was holding down both the arms of the deceased and he got up only when Randhira was killed. She went on to state that Randhira had struggled and had fallen on the ground and that after that the accused did not cause any injuries to him. The medical evidence, on the other hand, was to the effect that the hands of the deceased were free when the assault had been made on him. It was further to the effect that the assailant was not sitting on the deceased's chest, but it is possible that one man may have sat on the chest while another caused the injuries but as there are injuries on the back also it is not probable that any one sat on the chest unless he sat only for part of the duration of the assault. If the medical evidence on that point is correct, based largely upon the nature and the extent of the injuries and the position of those injuries, the statement of Ganga Devi, namely, that Lalsaiya had been sitting on the chest of the deceased and was holding down both the hands of the deceased and he got up only when Randhira's life became extinct, becomes false. The inference drawn by the learned Sessions Judge, namely: "The man on the chest may have thought that Randhira had been killed and may have got up, but Randhira may have had just sufficient life left in him to turn over and may have expired immediately after. In any case I do not find any support for the contention of the Learned Counsel that the medical evidence contradicts either the prosecution case that one of the assailants sat on the chest or Smt. Ganga Devi's statement that a man sat on the chest, but later Randhira due to his struggles fell on the ground" is in our opinion not justifiable. We are unable to pin any faith in the testimony of Smt. Ganga Devi. The learned Sessions Judge discarded the statement of Smt. Ganga Devi when she said that she informed Randhira's parent and that Tulla and Smt. Sumeria had raised an alarm at the time of the occurrence. He further did not accept her statement that she raised an alarm when the accused persons were taking away the corpse. The learned Sessions Judge discarded the statement of Smt. Ganga Devi when she said that she informed Randhira's parent and that Tulla and Smt. Sumeria had raised an alarm at the time of the occurrence. He further did not accept her statement that she raised an alarm when the accused persons were taking away the corpse. In spite of that conclusion the learned Sessions Judge observed: At that time she appears to have agreed to give out the story suggested by the accused and it, therefore, does not appear probable that she would go about telling people or raising an alarm 6. After having come to that conclusion the learned Sessions Judge observed: It is suggested that the fact that she did not raise an alarm, that she assisted in the offence by removing the evidence of murder and she at first gave out the story that Randhira had gone across the Ghambal taken in conjunction with the fact that she did not raise an alarm lead to the conclusion that the murder was committed with her concurrence. It is suggested that she is an accomplice. There, is, however, no evidence on the record to suggest that Smt. Ganga Devi is an accomplice. The accused have not made any suggestion either in their statement or in the cross examination of the prosecution witnesses. 7. The question whether a certain witness was an accomplice or not is not to be borne out by direct evidence on the record. It can be inferred from the facts and circumstances of the case and from the evidence of the witness herself. There is of course no warrant for the extreme proposition that if a person sees the perpetration of a crime and does not give information of it to anyone else, she might be regarded in law as an accomplice. But the evidence of such a person should be scanned with much caution and the court must be fully satisfied that she is witness of truth especially when no other person was present at the time to see the murder. Though she was not an accomplice, the Court would still want corroboration on material particulars as she is the only witness to the crime and as it would be unsafe ta hang the accused on her sole testimony unless the Court feels convinced that she is speaking the truth. Though she was not an accomplice, the Court would still want corroboration on material particulars as she is the only witness to the crime and as it would be unsafe ta hang the accused on her sole testimony unless the Court feels convinced that she is speaking the truth. Such corroboration need not, however, be on the question of the actual commission of the the offence. What the law requires is that there should be such corroboration of the material part of the story connecting the accused with the crime as may satisfy reasonable minds that a person may be regarded as a truthful witness. In the present case the learned Sessions Judge did not pin any faith upon the testimony of the other eyewitness, namely Tulla PW 6 and observed that he was not prepared to believe him. If the evidence of Tulla is discarded the only other eye-witness in the case was Smt. Ganga Devi and as we have already noticed, the learned Sessions Judge found considerable difficulty in believing her on material particulars and that was the reason he discarded her statement on more than one important point and did not think fit to rely upon her in coming to the conclusion that the other co-accused was the person who had hacked Randhira in the manner suggested by the prosecution. 8. Of the two witnesses, Smt. Sumeria PW 5 and Gopi PW 7 who were produced to support the theory that they were the per-persons who had seen the two accused removing the dead body from the place of occurrence to the cave, Sumeria stated in the court of Sessions that she did not see the actual removal and that she was told by Ganga Devi that the dead body had been removed by them. The statement of Sumeria recorded by the Committing Magistrate was therefore brought upon the record under the provisions of S. 288 of the CrPC. Smt. Sumeria admitted that she had made that statement, but she contended that she had repeated what Ganga Devi told her and in that statement as well she had not said that she had been a witness to the actual removal. Smt. Sumeria admitted that she had made that statement, but she contended that she had repeated what Ganga Devi told her and in that statement as well she had not said that she had been a witness to the actual removal. We have looked into the statement that was recorded before the Committing Magistrate and we do not find that there is any thing in it which might justify the contention that she had herself seen Ram Dayal and Lalsaiya taking away the dead body of Randhira in the morning. There was therefore no contradiction between her statement recorded by the Committing Magistrate and that recorded in the Court of Sessions and there was nothing to justify the learned Judge to take earlier statement under the provisions of S. 288 of the Code in order to furnish the basis of the contradiction. The other witness Gopi PW 7 stated that just before sunrise he heard somebody shouting: Shut up or I will kill you. 9. He went on to add that Ram Dayal alias Ramdilla and Lalsaiya Appellant were saying this to Randhira's wife that after hearing those words he went towards Randhira's house and he saw the two accused carrying the corpse tied up in a gunny. The statement of Gopi loses all claim to credibility when we find him having admitted in cross-examination that in spite of those circumstances he had had no talk with Ganga Devi and he had raised no alarm and he did not go to the Chowkidar in the village to convey the information of a dastardly crime of this nature having been committed before his eyes. The evidence of removal of the corpse by thd Appellant and by Ram Dayal must therefore be rejected. 10. The extra-judicial confession imputed to the Appellant was tried to be supported by the testimony of three witnesses, namely, Basant Puri PW 8, Mihi Lal PW 9 and Bharat Singh PW 10. Bharat Singh stated that a panchayat was held and in that panchayat Lalsaiya had acknowledged that he and Ram Dayal had killed Randhira and he asked the panches to save him. The witnesses of this alleged extrajudicial confession were not examined by the Sub-Inspector soon after the occurrence. Bharat Singh stated that a panchayat was held and in that panchayat Lalsaiya had acknowledged that he and Ram Dayal had killed Randhira and he asked the panches to save him. The witnesses of this alleged extrajudicial confession were not examined by the Sub-Inspector soon after the occurrence. In fact the learned Sessions Judge discarded the testimony of Mihi Lal by observing that he was examined late and it is difficult to atitache much weight to his testimony. But so far as Bharat Singh was concerned, his evidence was believed by the learned Sessions Judge who was of the opinion that though his evidence may be considered weak as no record of the alleged extrajudicial confession was prepared when the confession had been made, yet in any case his testimony would furnish proof of extrajudicial confession against the Appellant, though not against Ram Dayal. We have not been able to appreciate this line or reasoning advanced by the learned Sessions Judge. If the witnesses cannot be believed in regard to the extrajudicial confession made by one, they could not have been believed with regard to the extrajudicial confession alleged to have been made by the other. 11. The recovery of the gandasa Ext. 1 at the instance of the Appellant was resolutely denied by the Appellant. The evidence bearing upon the questtion was furnished in the testimony of Brindaban PW 12. He stated that he was at the place of occurrence since before the arrival of the Sub-Inspector, that after the Sub-Inspector came and arrested Lalsaiya and interrogated him, Lalsaiya took him and several others to a well; that at the well Lalsaiya said that the gandasa was in the well and the witness was sent in and he brought out the gandasa from out of it. This gandasa is not said to have been used by Lalsaiya himself in the commission of the offence. It is said to have been used by the other accused. Why Lalsaiya should throw it into the well is shrouded in mystery. Moreover, there is no evidence on the record to prove that when the dead body was being carried into the cave somebody saw either one or the other accused throwing the gandasa into the well. It is said to have been used by the other accused. Why Lalsaiya should throw it into the well is shrouded in mystery. Moreover, there is no evidence on the record to prove that when the dead body was being carried into the cave somebody saw either one or the other accused throwing the gandasa into the well. We are therefore not inclined to act upon the testimony of Brindaban in coming to the conclusion that this gandasa was recovered by the police at the instance of the Appellant. 12. It was admitted on behalf of the prosecution that in the court yard where the occurrence took place one Ganesh who has his house adjacent to the house of the deceased was sleeping. Ganesh was not produced. It was contended that he was not produced because he was a blind man and he could not have seen the occurrence. He, at any rate, ought to have heard the shouts and he would have been an important witness about the matter. The non-proauction of Ganesh and of Randhira's mother and step-father to whom Smt. Ganga Devi is said to have confided the matter at the earliest opportunity casts serious reflection upon the investigation of the case. 13. After having given the evidence which was produced on behalf of the prosecution our most careful and anxious consideration we are unable to hold that charges u/s 201 and 302-34, IPG were at all brought home to the Appellant. It is unfortunate that a brutal murder of this nature goes undetected and unpunished; but the responsibility for that sorry state of affairs must be fastened to the investigating and the prosecuting agency. Under the circumstances we allow this appeal, set aside the conviction and sentence of the Appellant and direct that he be set at liberty at once unless wanted in any other matter. The reference is rejected.