JUDGMENT B. Mukerji, J. - These are three connected appeals arising out of the same incident. Appeal No. 1219 of 1957 is by Lal Singh and Parshadi; Appeal No. 1220 of 1957 is by Bhola, a cousin of Parshadi; and Appeal No. 1221 of 1957 is by Gulab Singh, Jaswa alias Jasram, and Mukhtara, who are cousins inter se. Lal Singh, Parshadi and Bhola are related to each other as cousins, while the three appellants in Appeal No. 1221 of 1957 are cousins inter se. On the prosecution case no relationship has been shown between the first group of cousins and the latter group of cousins, although there was a suggestion that all the appellants belonged to same party. 2. Originally, nine persons were prosecuted for offences punishable under section 302/149, 147 and some also for committing an offence punishable under section 148, IPC. These accused were prosecuted for a triple murder which is alleged to have been committed on the night between the 16th and 17-7-1956, in village Peethkhera. The learned Additional Sessions Judge, who tried the case, acquitted three out of the nine accused. The acquitted persons were Khushal, Netram and Harkesh. It may be mentioned here that these three acquitted accused were brothers of Bhola, who is the sole appellant in Appeal No. 1220 of 1957. Out of the remaining six accused--all the appellants in the three appeals before us--appellants Parshadi, Lal Singh and Gulab Singh have been convicted under section 148, IPC and sentenced to two years' rigorous imprisonment each and appellants Mukhtara, Jaswa alias Jasram, and Bhola have been convicted under section 147, IPC and sentenced to one and a half years' rigorous imprisonment each; while all the six appellants have further been convicted under section 302/149, IPC and sentenced to death. There is, along with these three appeals, the usual reference under section 374 of the Criminal Procedure Code by the learned Judge for the confirmation of the sentences of death passed by him on all the six appellants. 3. The case of the prosecution was that Parshadi appellant had an evil eye on one Ram Rati, sister of PW Ram Kali, wife of deceased Ram Chandra, and that when he was unable to get her in marriage he committed rape on her, sometime in April, 1956, even boasted in the village of having done so. 3. The case of the prosecution was that Parshadi appellant had an evil eye on one Ram Rati, sister of PW Ram Kali, wife of deceased Ram Chandra, and that when he was unable to get her in marriage he committed rape on her, sometime in April, 1956, even boasted in the village of having done so. Ram Rati appears to have been married earlier to one Amar Singh in 1953. The relationship between Parshadi and his relations, on the one hand, and Ram Rati's people, on the other, deteriorated considerably because of the alleged immoral assault by Parshadi on Ram Rati in 1956. On the prosecution case it was suggested that even though the relations had temporarily become very bad, Parshadi somehow managed to keep on friendly terms with Ram Chandra, Ram Kali's husband, and often used to meet him and talk to him, although this conduct of Ram Chandra in being friendly with Parshadi was not very much liked by his other brother Khazan or even by his father Mohan. 4. On the prosecution case it was alleged that on 16-7-1956, Parshadi called Ram Chandra for a smoke at his house and where again he started taunting him about his having raped Ram Rati and nobody being able to do anything about this matter. Khazan also happened to reach that place and there was some sort of an incident in which tempers rose, but others intervened and a scene that may have become very ugly was aborted. It is alleged that sometime late on the night of 16-7-1956, the nine accused, including the six appellants before us, came armed with spears, sujas and lathis and launched an attack on Mohan, Ram Chandra and Khazan, who were at that time sleeping on their cots on the chabutra lying to the north of the sitting room of Bhupa Chhipi. Ram Kali, wife of Ram Chandra was inside her house and she heard the noise and the cry of the injured. So she got on the roof and saw the incident and raised a cry. According to the prosecution, the incident was witnessed by at least eleven persons. Two persons, Mohan and Ram Chandra, died on the spot and, according to the prosecution case, the third, Khazan, died on his way to the police station. 5. So she got on the roof and saw the incident and raised a cry. According to the prosecution, the incident was witnessed by at least eleven persons. Two persons, Mohan and Ram Chandra, died on the spot and, according to the prosecution case, the third, Khazan, died on his way to the police station. 5. A first information report of the incident was made at police station Hasanpur by Srimati Ram Kali, widow of Ram Chandra deceased, at 8 a.m. on the morning of 17-7-1956, the police station Hasanpur being six and a half miles away from Peethkhera, the village of Incident. In this first information report Ram Kali nominated nine persons as accused all the nine that were prosecuted and stood their trial before the Court of Session. In her first information report Ram Kali stated, this, in regard to the motive for the crime: "About three years ago my brother Har Charan came to my village in search of a bridegroom for my sister Ram Rati. He enquired from my husband about a boy. At that time Parshadi of my village was also sitting there. He suggested to perform the marriage with him. In joke, my brother said 'haan' (yes). The people of my family got my sister Ram Rati married with Amar Singh of Balipur. This displeased Parshadi, and he was on the look out of my sister. Last Baisakh, Parshadi went to my father's place in Nekpur and spoiled the chastity of my sister, and ran away. In the village, daily, he used to taunt me and my husband on this account. In the meantime, Parshadi won over my brother Har Charan and he began to visit him. At the time of meal in the night, Parshadi called my husband and took him to his house under the pretext of enjoying a smoke. There he again taunted my sister. This enraged my husband, who made an encounter with Parshadi; and the Hukkas were thrown at each other. In the meantime my Dewar (husband's younger brother) Khazan also reached there. Out of fear Parshadi got up in the Kotha. The village people pacified both of them." In regard to the actual incident this is what Ram Kali stated in her first information report: "After midnight, in the moon light, on an alarm, I got up, and I ran up on the roof of the Kotha. Out of fear Parshadi got up in the Kotha. The village people pacified both of them." In regard to the actual incident this is what Ram Kali stated in her first information report: "After midnight, in the moon light, on an alarm, I got up, and I ran up on the roof of the Kotha. There I found my husband, Dewar and father in law being struck with lathi, Ballam and Sooja by Parshadi, Lal Singh, Jaswa, Gulab, Mukhtara Jat of my village and Khushal, Bhola, Harkesh and Netram Jat of Tassia, who are cousin brothers of Parshadi. On the alarm raised by me as well as by them, from all the sides, there came peoples of my village." According to Ram Kali's first information report, Kalva, Ram Kumar, Jagna, Ram Kara, sons of Bhupa Chhipi, and Bhapa Chhipi, Sadhu, Roop Keshore, Bawan, Teku, Niahar and Nek Ram Jat arrived in time to witness the assault. It is important to note that according to the first information report the incident which supplied the immediate motive for this triple murder by the accused took place at the time of the taking of the meals in the night, while the actual assault was stated to have taken place after midnight. We emphasise this aspect of the first information report because during the course of evidence at the trial the witnesses changed both these timings, for the first incident was placed in evidence at about sunset, while the actual assault was attempted to be shifted as much away from midnight as the ingenuity of witnesses could manage. 5. The Investigating Officer Trilok Chand Tyagi, who was present at the police station when the first information report by Ram Kali was made, dispatched Sri Chandra Bhatiya, the Second Officer of the Police Station Hasanpur, to the scene of occurrence to prepare the necessary inquest report, etc., while he himself started preparing an inquest report on the body of Khazan who is alleged to have died on his way from the village to the police station. Investigating Officer Tyagi arrived at the village sometime about midday on 17-7-1956. 6. Investigating Officer Tyagi arrived at the village sometime about midday on 17-7-1956. 6. Postmortems on the bodies of the three deceased were performed on 18-7-1956, the one on the body of Khazan was performed at 4 p.m., while the other on the body of Mohan was performed at 5 p.m., and the third on the body of Ram Chandra was performed at 5-45 p.m. by Dr. K.C. Dobhal, a medical officer of Moradabad. The postmortem reports revealed that three deceased received numerous injuries: according to the learned trial Judge, the total number of injuries to be found on the three bodies was 49, while, according to our calculation it comes to 47. On either total the injuries must be held to have been very large indeed. Two aspects of the postmortem reports need careful attention, one, the nature of the injuries found on postmortem examination, and the other, the stomach contents of the three deceased, because both these two factors are of importance in order to test whether or not the prosecution version of the assault in regard to time and the weapons used was true. It has been already noticed by us that according to the first information report the accused were armed with lathis, ballams and sujas and that all the arms were used by the accused in the assault. There was nothing in the first information report to indicate that a ballam was not used as a ballam is used, or a suja, which is a sharp piercing instrument attached to a lathi, was not used as a suja is used. It has also been noticed by us that the assault was placed after midnight. An examination of the injuries clearly indicates that apart from one incised penetrating wound on the person of Ram Chandra, i.e., injury No. 12 of the list of injuries in the postmortem report, there was no other injury on the person of any of the three deceased which could appropriately be ascribed either to a ballam (spear) or to a suja. The stomach in the case of each of the three deceased was found to be empty. So that, the assault must have taken place after a lapse of at least four or five or even six hours after the deceased had taken their last meals. 7. The stomach in the case of each of the three deceased was found to be empty. So that, the assault must have taken place after a lapse of at least four or five or even six hours after the deceased had taken their last meals. 7. Although eleven persons were named in the first information report, excluding the informant herself, to have seen the incident, yet at the trial the prosecution produced the informant Ram Kali and only three alleged eye witnesses. In the calendar however, the names of all the eleven witnesses were put down as eye witnesses of the occurrence. At the trial the prosecution, however, examined only Ram Kali, Bhupa, Roop Kishore and Jagan: Bhupa and Jagan are father and son. All the named witnesses were not examined before the Court of the Committing Magistrate either. Before the learned Additional Sessions Judge an application was made on behalf of the prosecution on 1-5-1957, stating that Netram, Niadar, Kalva and Taku had not been produced before the Committing Magistrate's Court as they had turned hostile there and that the other P.Ws., namely, Balak Ram, Ram Ratan and Sadhu, were colluding with the defence and had turned hostile and therefore, they were not going to be produced. The defence had notice of this application and they challenged the assertion made in the application on behalf of the prosecution that some of the prosecution witnesses had either been won over or were colluding with the defence, but nevertheless the prosecution made no effort either to produce any witnesses or even to place before the Court any material on which the Court could come to its own conclusion in regard to whether the assertion of the prosecution was right or the defence assertion was right. The learned Additional Sessions Judge, in our view, should have demanded from the prosecution the production of some sort of material before the Court on which the Court could form its own opinion in regard to this matter, for it is a serious matter not to produce a vast number of eye witnesses who are specifically mentioned as witnesses in the first information report and to content by producing only a few of the witnesses and then explaining the non-production, so to speak, by making a vague allegation that the other witnesses were not being produced because they had been won over by the defence. We are conscious of the fact that it is not obligatory on the prosecution to produce all the available eye witness testimony in a case but nevertheless it is the duty of the prosecution to produce before the Court a large proportion of the available evidence and to leave it to the Court to judge whether or not the evidence produced was sufficient. In our view, although the prosecution has the right to choose its witnesses, the prosecution should not, in the normal course, appropriate to itself the sole duty of judging what quantum and what quality of evidence should be sufficient for bringing home any particular charge against a particular accused. If the prosecution take upon themselves the responsibility of deciding to keep back a certain number of witnesses who were alleged to have been eye witnesses of the occurrence, then they take the responsibility on themselves if the evidence they produce is found insufficient or if there is criticism on behalf of the defence that the prosecution have withheld other evidence from the Court through oblique motives, or if the argument on behalf of the defence was raised that if other witnesses had been produced, then they would have given a different version of the incident from that suggested or deposed to by the witnesses who have actually been produced in the case. If the prosecution wish to keep back a witness on the ground that the witness has been tampered with by the defence or has been influenced by the defence and was not going to state the truth, then they should, in our view, place before the Court material on which the Court itself could pronounce its opinion about the assertion made on behalf of the prosecution, for, in our opinion, a mere assertion that witnesses have been won over does not protect the prosecution against the criticism that those witnesses have been withheld through oblique motives or that the witnesses have been withheld because those witnesses were not prepared to support the prosecution case as put forward in Court from the mouths of other witnesses produced. The position in this case is precisely the same, for there is before us no material on which we could say that the assertion made on behalf of the prosecution in their application No. 25-A, dated 1-5-1957, was right or wrong. The position in this case is precisely the same, for there is before us no material on which we could say that the assertion made on behalf of the prosecution in their application No. 25-A, dated 1-5-1957, was right or wrong. Investigating Officer Tyagi did not say a word about it while he was giving evidence in Court. In our opinion, Tyagi should have stated on oath that the witnesses who were not being produced had been won over and there-by given the defence a legitimate opportunity of testing that assertion of the Investigating Officer by cross-examination. This not having been done, it is unreasonable for the Court to accept the mere assertion made on behalf of the prosecution that the eyewitnesses, who were not produced, had been won over by the defence. The position being what we have stated, the prosecution case suffers from this infirmity, namely, from not producing before the Court all these witnesses who were alleged to have been eye-witnesses. The prosecution in this case took the risk of resting their case on the testimony of only four witnesses. The evidence of these four witnesses was placed before us in extenso by learned counsel for the defence. The evidence was not of such an order as could inspire the confidence of a Court. The learned Deputy Government Advocate, who appeared for the State, very candidly conceded that none of the four eye-witnesses was of such merit as could justify our placing implicit reliance on his or her testimony to an extent as to override some of the circumstances which appeared to militate strongly against the prosecution case. This being the position of the eyewitness testimony in the case we should like at this stage to turn our attention to those circumstances which, in our judgment, militated strongly against the prosecution version. 8. The assault on the three deceased was said to have been made at night. The first information report stated that the source of light to assist visibility was the moon. In the evidence, however, the witnesses found' out another source of light, namely, a panchayati lantern burning a few paces away from the scene of occurrence. 8. The assault on the three deceased was said to have been made at night. The first information report stated that the source of light to assist visibility was the moon. In the evidence, however, the witnesses found' out another source of light, namely, a panchayati lantern burning a few paces away from the scene of occurrence. It is significant to note that the moon would be setting on the night of the incident at Moradabad at about 12.15 a.m. If the incident was after midnight, then the available moon-light, if there was any, would not be of a very satisfactory type. The prosecution appears to have sensed this difficulty and, therefore, they made their eye-witnesses depose to there having been a panchayati lantern on a post burning near the scene of occurrence. The Investigating Officer in his site-plan has shown a place of this alleged panchayati lantern. The defence categorically denied that any panchayati lantern burnt on that night. The defence suggestion was that this lantern was not there, although there was a post for it, and further, that in any event the lantern was not lighted on such nights on which the moon shone during any part of the night. From the evidence it is clear that oil for this lantern was not provided by Government or any governmental organisation but; was found by the villagers themselves. There is nothing to indicate that any one was responsible for seeing that this lantern had enough oil or that this lantern was regularly lighted and extinguished. So that, it is very difficult for a Court to hold categorically that this lantern must have been alight on that particular night. The fact that the lantern had oil in it, as alleged by the Investigating Officer, was indicative of the fact that on that particular night the lantern had not been lighted or that if it had been lighted it had got extinguished or had been extinguished soon after being lighted. In our view, therefore, the prosecution had to depend for their source of light on the moon and they had to prove to the satisfaction of the Court that there was on that particular night sufficient moonlight at the time of the assault for witnesses to see and recognise as many as nine alleged assailants. In our view, therefore, the prosecution had to depend for their source of light on the moon and they had to prove to the satisfaction of the Court that there was on that particular night sufficient moonlight at the time of the assault for witnesses to see and recognise as many as nine alleged assailants. As we have already pointed out, the margin between the prosecution assertion of the time of the assault in the first information report and the time when the moon set was so short that it is difficult for a Court to categorically come to a conclusion that there was ample visibility for witnesses to see and recognise the assailants. 9. Another aspect of the matter that needs attention is that in this case, according to the first information report, there were nine assailants--Ram Kali nominated them in her first information report. At the trial, however, it transpired that Ram Kali did not know all the nine assailants. In her evidence she stated that she got the names of Harkesh, Netram and Khushal (the acquitted accused) from Khazan deceased while he was being taken from the village to the police station. This was a new story for there was nothing in the first information report to indicate that Ram Kali herself was not acquainted with all the nine nominated accused or that she got the names of any of the alleged assailants from Khazan while he was being brought from the village to the police station. It is significant at this stage to notice the fact that while Khazan was at the village he made no mention of the names of any of his assailants. It was curious, in our opinion, that he should have thought of mentioning the names of the assailants while he was on his way to the police station. One question that immediately arises in connection with this assertion of Ram Kali that she got the names from Khazan is whether Khazan was in a state to be able to give out the names of his assailants. Khazan had received as many as 25 injuries in almost all parts of his body. There was a fracture of the skull and further there was a depressed fracture of the right temporal bone to an extent of 1" x 1" depressing the brain underneath the injury. Khazan had received as many as 25 injuries in almost all parts of his body. There was a fracture of the skull and further there was a depressed fracture of the right temporal bone to an extent of 1" x 1" depressing the brain underneath the injury. The medical officer, who conducted the postmortem on the body of Khazan, stated that the injuries sustained by Khazan were such as could have led to his instantaneous death. He, however, also stated that he might have survived five or six hours after the injuries. We do not know from the evidence as to when exactly Khazan died. So that, we have no means of even checking whether Khazan could have been alive when he is alleged to have made the statement. It is important to note that the precise time when Khazan gave the names to Ram Kali has not been stated by her, although she stated that she asked Khazan about Harkesh, Khushal and Netram when they had travelled about one and a half miles on their way from the village to the thana. This statement of Ram Kali, in our opinion, was an unreliable statement, for she did not state anything of the kind to the Investigating Officer: indeed the learned Judge has not relied on this part of her testimony. As a matter of fact the finding of the learned Additional Sessions Judge in short amounts to this that there was a deliberate attempt made in this case to implicate falsely Harkesh, Netram and Khushal by Ram Kali. It is interesting to note that Ram Kali herself did not know either of these three persons. Bhupa and Jagan, P.Ws. 2 and 4, made mistakes in identifying these accused. So that, they too did not know these accused very well. These accused did not reside in the village of incident but belonged to village Tassia which was more than a mile away from village Peethkhera, the village of incident. Their participation in the incident was not natural, for this assault, according to the prosecution, was organised after the incident between Parshadi and Ram Chandra earlier the same night. These accused did not reside in the village of incident but belonged to village Tassia which was more than a mile away from village Peethkhera, the village of incident. Their participation in the incident was not natural, for this assault, according to the prosecution, was organised after the incident between Parshadi and Ram Chandra earlier the same night. So that, if the time-chart of the prosecution was right, then there could not have been enough time or opportunity for Parshadi, who is alleged to have organised this assault, to get these people from village Tassia, and further no reason appears to us which could have prompted Parshadi getting these people to come to join the assault. This case, therefore, suffers from a serious stigma, namely, the stigma of bolstering up a false case against innocent people, because certain interested people utilise this opportunity to, so to speak, rope in these people. The witnesses who have been produced are not impartial witnesses, for each had a reason which could prompt him or her to falsely implicate people. Further, each of these witnesses did in the case of Harkesh, Netram and Khushal falsely depose knowing that they were deposing to something which was not true. Such witnesses, in our opinion, could not be relied upon. 10. There is yet another circumstance which calls for serious attention and which, in our judgment seriously jeopardises the veracity of the prosecution case, and that is the inconsistency that there is between the injuries as noted in the postmortem reports and the instruments of assault as alleged by the prosecutions. In this connection it is interesting to note that the witnesses have made a deliberate attempt in evidence to reconcile the apparent conflict between the medical evidence and version of the prosecution case as set up in the first information report. On the first information report the accused were armed, as we have pointed out, by ballam suja and lathi and they used these weapons. If they had used the weapons, then there would have been injuries from ballam and suja. As we have already noticed, there was only one injury which could have been ascribed either to a ballam or to a suja and no other injury out of the very large number of injuries that were sustained by the three deceased. If they had used the weapons, then there would have been injuries from ballam and suja. As we have already noticed, there was only one injury which could have been ascribed either to a ballam or to a suja and no other injury out of the very large number of injuries that were sustained by the three deceased. The prosecution, therefore, invented a story, if we may put it that way, to reconcile the apparent conflict, and the story that they invented was that the assailants used the spears and sujas not as spears and sujas but as lathis. We are unable to accept this assertion of the prosecution witnesses, for we cannot believe that if the assailants came armed with ballams and sujas in order to finish their enemies quickly and truly, they would not use those weapons as they are meant to be used or were intended to be used, but they used them differently. In our opinion, this effort, which was made by the prosecution witnesses to reconcile the statement made in the first information report with the injuries found on postmortems, indicated that the witnesses could go to any length and could not safely be relied upon. 11. Since in our judgment the broad facts of the case were such as to cast serious doubt in regard to the truth of the prosecution case we have not considered it necessary to go into greater details in regard to the actual evidence in order to show that that evidence on its own merits was also undependable. 12. For the reasons given above, we allow these appeals, set aside the convictions and the sentences passed on all the appellants and direct that they be set at liberty forthwith unless wanted for some other offence. The reference which has been made by the learned Judge for the confirmation of the sentences of death is rejected.