JUDGMENT H.R. Krishnan, J. 1. This judgment covers three proceedings, namely death reference No. 3 of 1958 by tile learned Additional Sessions Judge of Shajapur, Appeal No. 69 of 1937 by the condemned man Ramlal Singh, and Appeal No. 83 of 1957 by five others who were sentenced under different sections to be presently set out. The Additional Sessions Judge has convicted and sentenced the six accused thus; Ramlal s/o Devi Singh under section 302 read with section-149 I.P.C. for the murder of Fateh Singh and Jagannath Singh and sentenced him to be hanged by the neck until he is dead; the remaining five persons, Karansingh s/o Devisingh, Ghisasingh s/o Devisingh, Amarsingh, Harisingh sons of Karansingh and Pooriva sons of Prithwisingh who is a servant, Halwaha, of the family have all been convicted under section 302 read with section 19 I.P.C. and sentenced to (sic) imprisonment. His reason for awarding the lesser sentence is the youth of Harisingh and Anarsingh and the fact that if Ghisasingh and Karan has also been sentenced to the extreme penalty, "the whole family would be extinguished for ever." All these six have been convicted in addition under section 148 I.P.C. and sentenced to rigorous imprisonment for one year each and under section (sic) read with section 149 I.P.C. for attempting to murder Kesharsingh and sentenced to rigorous imprisonment for five years each. All the sentences are to run concurrently. 2. The common ground in this case is that sometime in the afternoon of the 19th July 1955 there was a fight between one or more of the member of the family of Devi Singh on the one side, and some of the family members of his brother Kesharsingh on the other, at their village Kolikhera about three miles away from the police Thana at Machalpur. How the quarred started, what course it took and what individual parts were played are all the subject-matter of controversy in the present case. But the results are beyond dispute. On one side there was one incised Wound on the right arm by a sharp outing instrument, and a scratch, on the back of Ramlalsingh, the eldest member of the Devisinghs family. On the other side, of Kesharsingh's family, two members, namely, Jagannathsingh and Fatel Singh sons of Kesharsingh were killed, by a number of head injuries inflicted by cutting weapons. On the other side, of Kesharsingh's family, two members, namely, Jagannathsingh and Fatel Singh sons of Kesharsingh were killed, by a number of head injuries inflicted by cutting weapons. Their father Kesharsingh received four injuries (three on the head) by cutting weapons and a few swelling and contusions; however, he survived. 3. The prosecution case is as follows: Near about midday on 19th July 1955, Ramlalsingh was found moving in the village with a sward threatening to attack Kesharisingh and his sons; the immediate provocation of the occasion of this performance is not state Common relations and neighbours pacified him and in fact locked him up for a short time till his temper cooled. Ramlalsingh and his relations remained in the village for a time will Kesharsingh went to report to a common relation in a neighbouring village. After a short time Jagannathsingh and Fatehsingh went to ploughing their field at a short distance outside the village. Narayansingh (about 12 or 13 years of aged-grant-son of Kesharsingh and son of Fatehsingh, is also said to live gone to the field with his father and uncle. A few hours later Ramlal singh and the five others namely his two brothers Ghisa and Kiransingh the 2 sons of Karansingh, and their Halwaha, Puresingh, were seen by some of the villagers going with weapons in the direction in which Jagannath and Fateh singh had gone. They saw Keshar Singh also going in the same direct on But though some of them say that they saw the altercation earlier in the day and had tried to pacify the parties, they did not follow them and show the least anxiety or curiosity about these movements. A short distance outside the village these six persons turned upon Keshar Singh and attacked him with deadly weapons; Ramlal Singh with a sword, Ghisa and Karan Singh with Pharsas, and the three other Purla, Amar singh and Harisingh With Lathis. The two sons of Keshar Singh saw this from where they were ploughing and ran towords the assailants of their father There upon the six assailants ran to meet them and attacked with their deadly weapons. All the three, father and the two sons fell down, the former at one place and the two letter a short distance away. The two sons of Keshar Singh saw this from where they were ploughing and ran towords the assailants of their father There upon the six assailants ran to meet them and attacked with their deadly weapons. All the three, father and the two sons fell down, the former at one place and the two letter a short distance away. The assailants came back to the village, Ramlal singh, shouting that he had killed all the members of the Kesharsingh's family, and boasting of Lis deeds, to the Wife of Keshar Singh (sic) Bai and Gulab Singh wife who were at their house. In fact Ramlalsingh went further, heartlessly reminded them of the death, some three years before of the eldest son of their family, and gloated that their entire family was becoming extinct. 4. One of the ladies also recollects that Ramlal Singh further said that he was going to the Thana. Whatever may be the truth of this. Ramlal Singh did arrive at the Thana at about 6 p.m. He gave a statement which has been exhibited by the prosecution, and which is admissible except for one sentence. It may be mentioned even here, that this led to a charge sheet against Keshar singh, and his two sons, though they were dead; otherwise, nothing came out of Ramlal Singh's statement at the Thana, not even any curiosity displayed by the Thana police, or any action, till the party of Keshar Singh arrived. 5. After the assailants retreated. Keshar Singh, Jagannath Singh and Fateh Singh were lying seriously wounded. Hearing Randal's statement at the village the two women Jadao Bai and Gulab Bai ran in the direction where the men folk had gone some hours before. Chowkidar Laxman and Motilal (another villager) joining them either on the way or at the field. Narayan, it is said, was also there having run away a short distance in fear, meeting and speaking to Gopi Chamar, and returning to where the three wounded persons were lying, he said that he described to his grandmother all that he had seen. Keshar Singh. It is said was conscious for a while and spoke to his wife about the assault on himself, and that on his sons, he then become unconscious. The Chowkidar took the three wounded persons in a bullock cart to the Thana, and was accompanied by Jadao Bai and Motilal. Keshar Singh. It is said was conscious for a while and spoke to his wife about the assault on himself, and that on his sons, he then become unconscious. The Chowkidar took the three wounded persons in a bullock cart to the Thana, and was accompanied by Jadao Bai and Motilal. On the way Jagannath died and Motilal went to fetch milk. Fateh Singh was still alive and the Chowkidar ran up to the Thana, brought a police truck and Carried the dead and the wounded, As the party reached the Thana, Fateh Singh a so died. The F.I.R. was gives at about 8 p.m. by the Chowkidar to the effect, that Gulab Bai widow of Jagannath Singh was running with a Iota of water to the field and she said to him that Ramlal Singh "and others" had cut down her father in law, brother-in-law and her husband Jagannath Singh. The Chowkidar went there and saw the injured persons and after that brought all of then to the Thana, Owing to a misunderstanding of an order of the I.G. it is F.I.R. was exhibited in three copies, one ostensibly relating each of the three victims of the attack, Keshar Singh was sent for medical treatment in hospital which is near the Thana; the corpses were sent for post mortem examination on the next morning. Nothing more not even the arrest of Ramlal who was at Machalpur, happened till the next day. 6. The Officer says that he left at about 10 a.m. for the village which is only three miles away; but even then reached at about 2 p.m. which is inexplicable unless there was a flooded stream on the way. He examined some villagers including Narayan Singh S/o Fateh Singh, and prepared a map of the locality which along with the explanatory notes has been exhibited in this case. But a good deal of the litter is inadmissible, not being, the, record of the officer's own observation, or of topographical features, but being a gist of the statement to the police of different persons. The two women were examined latest Jadap Bai on 22nd and Gulab Bai on 28th Keshar Singh was examined six days later It is said that he was unconscious when brought to the Thana, and that he continued to be soon two occasions the S.I. sent the Head Constable to see him. The two women were examined latest Jadap Bai on 22nd and Gulab Bai on 28th Keshar Singh was examined six days later It is said that he was unconscious when brought to the Thana, and that he continued to be soon two occasions the S.I. sent the Head Constable to see him. It is not clear why a policeman was not posted there, or the hospital staff or the doctor, requested either to record a dying declaration, or to send word to Thana as soon as he regained consciousness. Any way he was examined on the 25th. 7. Ramlal it is to be noted had given F.I.R. a early as 6 p.m. on 19th setting out a story and stating Something about the part he played Which, though inadmissible in evidence, was of importance in the investigation. According to the Chowkidar he was at the Thana itself (as an on-looker and not as a prisoner) when he brought Keshar Singh's party and gave the F.I.R.; according to the S.I. he was elsewhere but at Machalpur. Still it is surprising that he was not taken into custody, this was done two days 'after, when all the six, five of whom were named later on, were arrested. The accused persons also gave some statements by which lathis and pharsas were discovered; which "discovery" is of no significance as there were DO blood-stains on them and there was nothing special in these weapons being kept where they were found (sic) medical evidence which has already been indicated, shows that whoever attacked the three men, had the intention of causing injuries that most probably would be fated. The charges, very rightly framed, were of murder of the two son s, and attempted murder of the father and of membership of an unlawful assembly armed with deadly weapons and of liability under S. 149 I.P.C. Accordingly, these men were committed and ultimately convicted in the manner mentioned in the beginning. 8. Notwithstanding, Ramlal Singh's F.I.R. before the police the defence in the sessions court was one of the general denial. There is, however, an indication in it that the other factions were the aggressors and actacked him while he was grazing his cattle on commnon land, and he might have had to save himself by using a deadly weapon. 8. Notwithstanding, Ramlal Singh's F.I.R. before the police the defence in the sessions court was one of the general denial. There is, however, an indication in it that the other factions were the aggressors and actacked him while he was grazing his cattle on commnon land, and he might have had to save himself by using a deadly weapon. During the trial the appellants' position was not of self defence, but consisted in challenging the Veracity of prosecution witnesses. 9. Without indicating how at all the quarrel started on that day the prosecution witnesses divide the incident into two parts; the first, near about noon, and the Second about 4 P.M. or so, when the sun had declined some way. About what happened earlier on that day there is evidence of some villagers which on the face of it is not convincing; but it does show that there had been some sort of bal blood between the two families. Even those who claim to have pacified the parties are not in the least helpful, either on the nature of the back ground of enmity, or the starting of trouble on that day. About the second part of the happening five witnesses were examined-Kesher Singh being most important, followed by Narayan Singh the grand-son who claims to have been near the scene of the attack, and about whose presence there has been keen controversy; and three other villagers who claimed to have Seen the happening from their fields, but whom the Sessions Judge has disbelieved for very good reasons, namely, Bhairo P.W. 3, Kishan P.W. 4, and Kapiram P.W. 5. The two ladies of Keshar Singh's house claimed to have heard what they have stated as Ramlal's extra judicial confession; and to have gone immediately and heard everything from Keshar Singh and Narayan Singh. If this is treated as corroborative evidence, we have the four members of Keshar Singh's family as the main witnesses. 10. The most important witness is certainly Kesber Singh. There is no doubt on his ability to have seen those who attacked him and the weapons which they carried. If this is treated as corroborative evidence, we have the four members of Keshar Singh's family as the main witnesses. 10. The most important witness is certainly Kesber Singh. There is no doubt on his ability to have seen those who attacked him and the weapons which they carried. But about the attack on his sons it is doubtful what he could have seen, because it took place, as far as I am able to ascertain from the evidence, a few minutes later, at a distance of about 500 yards from where he was lying already wounded seriously. The investigation officer has made a map, of the scene of the occurrence as he understood it. Some of his notes are definitely, inadmissiable such as the place where so and so was beaten the place from so and so saw the occurrence, 'the place where such and such persons were standing'. He should have noted what he had actually seen and obvious features, such as village sites roads brides and survey marks. Signs of struggle such as trampling, blood marks articles thrown about, should and have been noted and marked. At place be found blood marks and a pair of shoes; at another place about 500 or 600 paces away he found more marks, now it two patches; the whole area was covered by tall grass that had been trampled. Unfortunately, there was no Serological examination and the possibility of some animal or fowl having been killed and blood marks being created there has not been eliminated. Still talking the marks to he those of human Wood, we are justified in placing Keshar Singh's fail at the first location and the track on his sons about 50 yards or a quarter of mile away The assailants must have taken a few minutes to go there from Keshar Singh after the latter fell down. I attach no importance to most of the contradictions elicited from Keshar Singh; but I do attach significance to one of those namely between statement that "he became unconscious after the attack" made to the police, and the one he Bade in the Court, that he was conscious and he went on narrating to his wife what had happened to him and to his sons". I do not believe it. I do not believe it. What is more important was that the story that Keshar Singh gives is not corroborated by the F.I.R. In fact the Chowkidar, and Keshar Singh's wife were going together to the Thana in the same bullock cart. At the Thana the chowkidar who gave the F.I.R. did not state that he heard anything from Keshar Singh or Jadaobai as for that matter; his report is based on what he heard from Gulab Bai who went with him a part of the way and then returned to the village, Her source of knowledge was only what Ramlal Singh shouted in the village. If anything like what Keshar Singh wants us to believe, namely his telling the story to his wife had happened, it would be the first and foremost thing mentioned in the F.I.R. whether it is given by the Chowkidar or by Jedao Bai her-self. Not only was she nude to give the F.I.R. but also was she not examined under section 162 Cr.P.C. till three days later. The explanation is that, having lost her two (sic) and seeing her husband's condition she was so upset as to become incapable of giving any statement at all; I do not accept it. The officer could and should have examined her and noted her statement, however disconnected and incogent it might have been. Some fact and patience is expected from the police in such situations; if not in a few minutes at least a few hours, she must certainly have been able to say something of great value for the ascertainment of the truth in this case. Whatever the explanation, the fact remains that no part of the story which Keshar Singh is said to have told to his wife has come into the F.I.R. 11. What Keshar Singh's physical and mental condition was during the next five or six days, has not been brought cut in the medical evidence. I am prepared to believe that he was unconscious for something; but it is difficult to believe that he was continuously unconscious for several days. After all the hospital is near the Thana and nothing was easier for the police there to depute somebody or to request the hospital staff or the doctor to send word as soon as the patient spoke. As things appeared on the night of the patient spoke. After all the hospital is near the Thana and nothing was easier for the police there to depute somebody or to request the hospital staff or the doctor to send word as soon as the patient spoke. As things appeared on the night of the patient spoke. As things appeared on the night of the 19th, it was advisable to have recorded a "dying declaration" may be by the doctor, or by a member of hospital staff; any way, the most important witness should have been examined as soon as he could open his mouth, and his statement noted This was not done; and Keshar Singh's spontaneous early statement is not before us to enable a check up of his evidence. 12. Coming to Narayan Singh's evidence, I note that the learned Sessions Judge has been very greatly impressed by it. With all respect to him I am unable to agree. This boy, it is said, had gone to the field with his father and uncle; by itself this is not impossible. He is supposed to have seen the happening, run away some distance, stated to Gopi Chamar that Ramlal Singh was beating his people, and then returned to the scene of the happening, in time to meet his aunt and grandmother. This looks rather improbable; but what followed is most incredible. If indeed, he was at the spot when the ladies came, he must certainly have told the story to them which again would have come in the F.I.R. All this necessarily, even if within a split second, his grandmother had asked him to go to another village. A further point is that nobody of the village is supposed to have heard Narayan Singh's cry for help. Here again, we come to the same hurdle as we did with Keshar Singh, ft Narayan Singh's story is true, how is it that this Chowkidar does not mention him in the F.I.R. and how is it that the gist of his story is not there, whether as being derived from him, or as being derived from one of the ladies? For the next 20 or 24 hours this boy is supposed to be playing hide and seek with the police. For the next 20 or 24 hours this boy is supposed to be playing hide and seek with the police. He is supposed to have gone to another village come back and gone to the Thana, and then again to his own village to be examined by the police officer sometime in the afternoon of the 20th. The result of the discussion is that the story given by these two witnesses, Narayansingh & Kishansingh, is not referred to in the F.I.R. even though it must have been, if what they, and the two women of the house, and the Chowkidar, state here is true. 13. The learned Sessions Judge refers to this state of affairs but brushes it aside as being of no importance; in fact he relies on Pandurang vs. State of Hyderabad A.I.R. 1955 S.C. 216) as authority for its being considered immaterial if a particular fact is not mentioned in the F.I.R. This is to misunderstand the ruling. All that the Supreme Court has said is that on the facts of that case the commissions in the F.I.R. were of no consequence. It is not at all suggested that omissions in the F.I.R. would always be of no significance. The F.I.R. is not substantive evidence and omissions in it will not ipso facto lead to the case being thrown out. But it is a place of corroborative evidence; omissions in it, will, other things being the same, deprive prosecution of the most valuable corroboration and thereby make the story suspicious. Sometimes, as in Pandurang's case, the prosecution may be able to stand inspite of the absence of corroboration from the F.I.R. But it is not so in the present case. For example, the boy witness's movements are unconvincing, he is, supposed to have narrated the story to his nearest relations in such circumstances that, if true, it would have gone in the F.I.R. Mention in the F.I.R. would have made it less incredible, Certainly Keshar Singh would have been a good witness at least in regard to the assault on him. But he was examined several days later, when the case has already taken its shape; his friends and relations had been coming and going, so that we are net in a position to check his statement here with the earlier possible one that could have been made by him. This disposes of the two important witnesses. But he was examined several days later, when the case has already taken its shape; his friends and relations had been coming and going, so that we are net in a position to check his statement here with the earlier possible one that could have been made by him. This disposes of the two important witnesses. 14. Whatever the reason, one circumstance in this case is that no body in the village has come to say that he heard any alarm or shout for help from the scene of occurrence only, a few hundred yards away. The three villagers other than Keshar Singh and Narain Singh, who claimed to have seen the happening have been rightly disbelieved by the lower Court. Some of the other villagers no doubt claim to have seen the parties go in this or that direction, but their account is most unconvincing. This, inspite of the fact that the villagers were there and it was day-time, and some of them at any rate give us the impression of having expected something to happen after the altercation between Ramlal Singh and Keshar Singh earlier at noon Reading this along with their sheer unwillingness or inability to tell us, bow at all the quarrel started that day one has to infer that every body on this side including Keshar Singh himself, is suppressing at least some of the relevant facts. 15. This takes us to what may be called the secondary evidence about the happening. The two ladies of the house say that Ramlal Singh went about shouting that he had killed Singh and his two sons, and the other son having already died 3 years before, their family was now extinct. This has been called an extrajudicial confession; but one difficulty is as in all such cases that the actual words have not been recollected; another difficulty is that it has been retracted. It is further apparent that Ramlal Singh was not saying anything in penitence, but was in fact indulging in a piece of bravado or justification. Though there is not, as there cannot be, any written record we can very safely assume that it was substantially the same as he reported at the Thana one hour later. It is further apparent that Ramlal Singh was not saying anything in penitence, but was in fact indulging in a piece of bravado or justification. Though there is not, as there cannot be, any written record we can very safely assume that it was substantially the same as he reported at the Thana one hour later. The admissible part of that statement (Ex P 13) combined with what the two women witnesses and their neighbours particularly emphasise constitute a correct account of what Ramlal said. Exhibit P. 13 runs thus: Fateh Singh and Jagannath Singh, Keshar Singh and Nawal Sondhia of my village Koli Khera had and beaten me earlier. They in fact, dislodged my teeth for which a case is pending Again today at about 5 O'clock in the afternoon I was grazing buffaloes; two boys named Ram Singh and Jagannath Singh, who were at a distance went up to the buffaloes & said, 'why are you grazing them here. This land is ours." I replied, 'No, this land is public land; (Sarkari mal)". Then there was an exchange of language between us during which Fateh Singh said, "You are defying us; we will give you a beating. I replied, "Let roe see, if you dare to beat me. Keshar Singh who also was there cutting Kakhra shouted that I should be beaten, All of them came to me and Fateh Singh began by hitting me on my right arm with a Pharsa; Jagannath Singh followed by hitting me on the back with a pharsa. I was running about near them and I was trying to save myself (one sentence inadmissible). Since three of them attacked me I began to bleed from my hand, leg and back. This is my report. This statement cannot be used as a piece of evidence for the prosecution; if on the contrary it is used for inferring that Ramlal must have stated in the village something more than the two ladies depose to, it considerably reduces the value of the latter statement. On any view, the retracted extra judicial confession is of very little value indeed. Independent corroboration is needed; there is very little of it here and that of unreliable quality. 16. On any view, the retracted extra judicial confession is of very little value indeed. Independent corroboration is needed; there is very little of it here and that of unreliable quality. 16. A comparison of the number of injuries inflicted on the two sides would show that very probably Ramlal Singh was not alone but was assisted by one or two more persons. But who the others were, we cannot be certain, Jadao Bai says that she saw the five others with him, and that they had blood stained clothes; but this is not true, as there is no mention of it in the First Information Report. Prosecution no doubt mentions, at a late stage all the other members of Ram Lal's family; for reasons already given that is not acceptable, Again, Ram Lal's account of the starting of the trouble, is more plausible, and contrasts with the prosecution which has given no account at all. Thus there are no gaps in the prosecution story with the statement of Ram Lal can be used to supply nor any material elements it can corroborate. All that it does show is that Ram Lal Singh had something to do with the affair; in what circumstances and in which company we do not know, Obviously, it is quire unsafe to hold him guilty simply on a definite indication tint he had something to do with the happening; the question really is whether his parties substantially the same as is attributed to him by the prosecution; that has not been satisfactorily answered. Even this much cannot be said in regard to the part played by the five others. 17. Whatever right have been his part in the incident, after it. Ram Lal has been acting remarkable self confidence. He shouts in the village, reports at the Thana, and knowing as he did, that three corpses or seriously wounded persons were bound to come, stays on according to the Chowkidar at the Thana itself, and at all events and Machalpur, according to S.I. It was in his presence, or at any rate, when he was in the immediate neighbourhood, that the two corpses and the one injured man were brought to the Thana; and the F.I.R. lodged charging him with the murder. Strangely enough he was not arrested till two days later when he was sent for in the village along with the five others. Strangely enough he was not arrested till two days later when he was sent for in the village along with the five others. The officer makes out that he did not (sic) him but let him remain (sic) under secret observation, by whom and for what porpose the officer has not given. This is most absurd. One does hear of a respect being secretly observed when the police think that he is going to dispose of incriminating property, and have reason to believe that he does not know of the observation. In this case there is no such happening. He himself had given information about an incident which turned out to be a double murder; there was a prima facie case against him. Yet, he was not arrested. The sheer paucity of evidence on the side of the prosecution is in part at least due to the nearest at the proper-time of the named accused. 13. Discussing this in this judgment, the learned Additional Sessions Judge observes;- It was only discretionary for the officer to arrest him and it was open to him to defer the ariest till completion of the investigation and full conviction in his mind of the guilt of the accused. This is wrong, and what is worse, is full of dangerous possibilities Whenever there is a basis for a reasonable suspicion that a cognizable offence has been committed the officer should arrest the person concerned, unless for reasons recorded in the diary he wants him to let him be free so that he can be watched secretly to find clues about the property. In comparatively minor offences, or where the prima facie evidence is not strong courts, usually give bail, but that did not arise in the present case before the S.I. One can easily see why the villagers were quite apathetic; they could not be otherwise, when the very man who went about shouting that he had killed two persons, and reported at the Thana, was not arrested even after the F.I.R. was given about those murders. 19. Actually all the six persons were arrested on the 21st i.e. two days later, though the officer came to the village on the 20th They were searched as usual but nothing came out of those personal searches except blood stained clothes of Ram Lal Singh who was certainly injured. 20. 19. Actually all the six persons were arrested on the 21st i.e. two days later, though the officer came to the village on the 20th They were searched as usual but nothing came out of those personal searches except blood stained clothes of Ram Lal Singh who was certainly injured. 20. Evidence was adduced about certain "discoveries" made on the 21st and the 22nd as a result of the statement by the accused. These were sought to be introduced in evidence under Section 27 Evidence Act. For example in Ex. P-3 A, Hari Singh is supposed to have taken the Police Officer and the Panchas to his khala (faran) and given them a Lathi. Even if it is treated as a discovery, I do not see how we can admit into evidence, what the accused is supposed to have stated as having done with the Lathi. Similarly, Ex. P-4 relates to Karan Singh who took them to his khala and brought out the handle of a pharsa (pharsa ki lakri) which he gave to the police; it is not proper to admit what Karan Singh is supposed to have told the officer about what he bad done with the pharsa. Ex- P 5 relates to Ram Lal Singh who is supposed to have taken them to his house and given them a sword. Certainly, the fact of a sword being kept in Ram Lal Singh's house may be evidence, but what Ram Lal Singh is supposed to have said about the earlier use of the sword is not. In about the same manner the other accused persons Anar Singh, Ghisa Lal Singh and Poorya Sondhiya are said to have given a Lathi, a pharsa and another Lathi respectively from their farms. Here also it is wrong to look into what they are supposed to have said regarding the use of the weapons. Even if these are discoveries still only those parts of the statements as are directly connected with the discovery can be taken into evidence. All these Lathis, pharsas and swords were sent to the chemical examiner. In view of Ram Lal Singh's own statement there would have been nothing surprising if the sword said to have been taken from his house had blood stains. Actually none of those articles had any bloodstains. All these Lathis, pharsas and swords were sent to the chemical examiner. In view of Ram Lal Singh's own statement there would have been nothing surprising if the sword said to have been taken from his house had blood stains. Actually none of those articles had any bloodstains. Thus, these so-called discoveries are not of any assistance in knowing whether these men had really attacked the three victims in the incident. They are certainly of no help whatsoever in finding out how and in what circumstances this attack took place. 21. In the result, I hold that the five accused other than Ram Lal Singh, were not thought of at the earliest stage; their names were introduced later. The evidence adduced against them is not acceptable. They were implicated, because they happen four of them to be members and the fifth a servant of Ramlal Singh's family. Again regarding Ramlal Singh himself the prosecution evidence is slightly better, in that he was mentioned in the F.I.R. and he himself at one stage admitted to have been in the happening. But the evidence as it has come to us is extremely unreliable. The learned Sessions Judge has pointed out with absolute correctness that in our country atleast the principle Falsus in uno falsus in omnibus has long been exploded. In fact, a rigorous application of this principle, will lead to the rejection of the evidence of nearly every witness in nearly every case, because the witnesses in law courts almost always add finishing touches to their evidence. On the other hand, if a witness's statement has a very considerable admixture of falsehood, then it may not be possible for the court to pick out the grains of truth from the mass of chaff. Here as in other matters, the question is one of degree and the stuff has to be rejected if hopelessly mixed with falsehood. To take a homely example, it is perfectly true that milk unadulterated with water is practically unobtainable any where in our country, and the house-holder who insists upon absolutely pure milk will have most often to go without it. But that does not mean that he is going to accept so-called milk in which the larger share is of water. To take a homely example, it is perfectly true that milk unadulterated with water is practically unobtainable any where in our country, and the house-holder who insists upon absolutely pure milk will have most often to go without it. But that does not mean that he is going to accept so-called milk in which the larger share is of water. He draws the line where the mixture still retains the test and colour of milk; and rejects all the specimens in which the water content is such as to mark the very colour and test of what he wants. In exactly the same manner courts have to draw the line at the stage where the admixture of falsehood is such as entirely to change the aspect of the case. Not being endowed like the legendary swan with the capacity of extracting drops of milk from a pot of water, courts have necessarily to reject the whole evidence where the false additions are overwhelmingly large. That is the position here, even in regard to Ramlal Singh. The circumstances leading to the incident have not been given; out of the five witnesses three were disbelieved with good reasons by the Additional Sessions Judge, Narayan Singh was, in my opinion, not present at the time of the occurrence. The other, Keshar Singh had every reason to know the part of the occurrence relating to him, but has spoken so much of falsehood that it is difficult to rely upon any part of his statement. All the accused, including Ramlal Singh, are entitled to the benefit of the doubt. 22. Finally, a few points about the mechanical or formal aspects of the investigation and the adducing of evidence can be usefully summarised. The F.I.R. for example is the first information of an occurrence or transaction in print of time, which reaches the authority competent to investing to or order an investigation. Obviously, there cannot be more than one first information in one case, however many the victims of the alleged offence. So, writing of three F.I.R. is irregular. The F.I.R. for example is the first information of an occurrence or transaction in print of time, which reaches the authority competent to investing to or order an investigation. Obviously, there cannot be more than one first information in one case, however many the victims of the alleged offence. So, writing of three F.I.R. is irregular. A sketch map of the scene of the happening, especially, if prepared early, is an invaluable piece of evidence; but it should show features and objects that are actually seen (and wherever possible measured) by the officer, and not a gist of the statements under section 162 Cr.P.C. Especially in regard to blood-marks, quantitative measurement, as of number and size is essential; certainly, they should, wherever controversy is likely about their location and nature, be sent for chemical and serological examination. Timely arrest of the accused persons in serious cases, is another (sic) step failure to make it, as in this case, considerably weakened the position of the prosecution. The manner in which witnesses are confronted under section 145 of the Evidence Act with contradictions between their statements under section 162 Cr.P.C. and those in court, is quite irregular, and at all events unhelpful. The entire statement under section 162 Cr.P.C. is exhibited by the defence and the witnesses are asked, if they had said before the police the passage say A to B in Exhibits such and such. No body can understand what this means. The proper method is to ask the witnesses whether they had made before the police statements to such effect, quoting the actual words used. At the actual words. At the end of the examination of the Investigation Officer, he should be asked to state, with reference to his case-diary if witnesses so and so had made such and such statements; in fact, this part of the officer's evidence will consist either of a string of the quotations from his, case-diary or statements to the effect that the witnesses concerned did not state any thing to such and such effect. 23. The reference is discharged, the peals, are allowed, and the convictions and sentences are set aside. They should be released or discharged from bail unless wanted in some other case. 24. 23. The reference is discharged, the peals, are allowed, and the convictions and sentences are set aside. They should be released or discharged from bail unless wanted in some other case. 24. The Additional Sessions Judge, Shajapur, convicted all the six accused appellants under Section 302 read with section 149 of the Indian Penal Code for the murder of Fateh Singh. He has also convicted them for the murder of Jagannath under Section 302 read with Sec. 149 I.P.C. For both the above, offences Ramlal Singh accused was sentenced to death but the other five accused (Ghisa, Karansingh, Amarsingh, Harisingh, Pooriya) were sentenced to life imprisonment. Moreover all the six accused were also convicted under Section 307 read with Section 19 I.P.C. for the attempted murder of Keshar Singh and each was sentenced to five years' rigorous imprisonment. Since a sentence of death is passed against Ramlal Singh, the Court of Sessions has sent the proceedings of the case under section 374 of the Criminal Procedure Code to the High Court for confirmation and the case is numbered as Criminal Reference No. 3 of 1957. The accused Ramlalsingh has filed an appeal against his convictions and sentences and his appeal is number ed as Criminal Appeal No. 69 of 1957 The other five accused have also filed appeal No. 83 of 1951 against their convictions and sentences. Since the two appeal and the Criminal. Reference arise out of the same case, all the three are being disposed of by a single judgment. 25. The prosecution story is that sometime before mid-day on the 19th July 1935, accused Ramlal Singh was observed moving about in his village Kolikhera with a sword in hand, This led to an exchange of abuses between the accused Ramlal Singh and two persons, who have been killed in this case, namely, Fateh Singh and Jagannath, Dhula P.W. 8 and Ghasilal P.W. 13, intervened and after removing the sword from the hand of Ramlal Singh, they took Ramlal Singh to his house. Keshar Singh, the father of Fatehsingh and Jagannath, apprehending trouble went to Khakikhedi, a neighbouring village to fetch Kalu P.W. 1, who was a common relation of both the accused Ramlal Singh and Keshar Singh the complainant, Kalu played the role of a mediator and the situation somewhat eased. Keshar Singh, the father of Fatehsingh and Jagannath, apprehending trouble went to Khakikhedi, a neighbouring village to fetch Kalu P.W. 1, who was a common relation of both the accused Ramlal Singh and Keshar Singh the complainant, Kalu played the role of a mediator and the situation somewhat eased. But it seems that after sometime, tempers again rose and the hope that the parties had become reconciled to each other was dashed to the ground. It is alleged that after the morning incident stated above, which serves as a prelude, Fatehsingh and Jagannath Singh went to plough their field which was away from the village. Narayan Singh aged about 12 years (son of Fatehsingh) is said to have accompanied Fateh Singh and Jagannath Singh to the field. Sometime after this Ramlal Singh along with other accused were also seen moving in the same direction in which Fateh Singh and Jagannath Singh had gone earlier. The father of deceased (Fateh Singh and Jagannath Singh) named Keshar Singh followed the accused. It is said that all the 6 accused first of all turned upon Keshar Singh who sustained no less than nine injuries. When the sons of Keshar Singh, namely, Fateh Singh and Jagannath Singh saw this from a distance they tried to rescue their father from the hands of the assailants. After beating Karan Singh the accused are alleged to have turned their attention upon Fatehsingh and Jagannath Singh and mercilessly attacked them. As a result of the injuries inflicted upon them all the three injured persons were found lying in the field in an unconscious state. It is said hat after this assault, Ramlal Singh returned to he village and in a spirit of bravado announced that he had put an end to Keshal Singh's family. This was heard by Mst. Jadao Bai wife of injured Keshar Singh, and Mst. Gulab Bai, wife of Jagannath Singh. Ramlal Singh said he had his pockets full of money and showed a cloth in which currency notes were wrapped. He also said that he was going to the Thana where he actually went and made a report, which is Ex. P. 16-A in which Ramlal Singh said that on account of grazing the cattle Keshar Singh, Fateh Singh and Jagannath gave him a beating, and he in his turn gave them a beating. He also said that he was going to the Thana where he actually went and made a report, which is Ex. P. 16-A in which Ramlal Singh said that on account of grazing the cattle Keshar Singh, Fateh Singh and Jagannath gave him a beating, and he in his turn gave them a beating. On hearing the bad news direct from the mouth of Ramlal Singh Mst, Jadav Bai and Gulab Bai went to the field where the injured were lying. Gulab Bai on her way informed Laxman Chowkidar about the incident. Laxman Chowkidar and another villager Motilal joined them in the field and arranged to carry the three injured persons to the Thana. 26. On the way to the Thana Jagannath died and by the time the party arrived at the Thana, Fatehsingh also died. Mst. Jadao Bai also accompanied the party to the Thana. An F.I.R. was made at about 8 P.M. by Laxman Chowkidar, in which only Ramlal Singh was named and it was said that there were other persons also along with Ramlal Singh but their names were not given this case presents a lot of difficulty which is mainly due to the fact that the Investigating Officer did not properly discharge his duties and although he challaned the case, yet he betrayed some partiality towards the accused. This may be due either to his inaptitude or to the presence of the roll of currency notes which Ramlal Singh accused is said to have taken to the Thana at the time of making his report Ex P. 16. A. Mst. Gulab Bai P.W. 9, in her statement has said that when after injuring her father-in-law Kesharsingh, Fatehsingh and Jagannathsingh, accused Ramlal Singh returned to the village, he announced in a spirit of bravado that he had put an end to the family. He also showed money and said that he was going to the Thana. The partiality of the Investigating Officer is also evident from the fact Hat when the dead bodies of Fateh Singh and Jagannath Singh reached Thana and when the F.I.R. was made by the Chowkidar (Ex. P. 3), in which the accused Ramlal Singh was named, Ramlal Singh was present at the Police Station (see the statement of Laxman Chowkidar P.W. 6), yet accused Ramlal Singh was not arrested then and there. The Investigating Officer Chandra Shekhar has obviously denied it. P. 3), in which the accused Ramlal Singh was named, Ramlal Singh was present at the Police Station (see the statement of Laxman Chowkidar P.W. 6), yet accused Ramlal Singh was not arrested then and there. The Investigating Officer Chandra Shekhar has obviously denied it. He has tried to explain it away by saying that he had sent the accused Ramlal Singh to the Hospital, because he was injured and that though he did not arrest the accused till after two days, yet he kept a watch over Ramlal Singh. Be what it may the fact remains that the investigation was carried in this case in a half-hearted manner. Another instance of the carelessness in this case is that although the Investigating Officer examined a number of witnesses, yet he never tried to find out what led to this quarrel. It is true that the evidence of motive is not necessary for convicting the accused when other evidence is there. But it is also true that the evidence of motive throws much light on the actions of those who are involved in it case. In the absence of any evidence of motive, the setting is not proper and the test of arriving at the truth is rendered some what difficult. It may be that in certain cases the motive cannot be ascertained yet an effort should be made by the prosecution to find it. The observations made by their Lordships of the Supreme Court in Abdul Gani vs. The State of Madhya Pradesh A.I.R. 1954 S.C. 31) seem to apply to this case and, I can do no better than to quote the observations: Though the prosecution witnesses have not told the whole truth and though it is not possible to get an absolutely true picture of the events from their evidence where it is not possible to say that the prosecution case is a complete fabrication and where it appears that certain murders have resulted front a riot in which some at least of the several accused have taken part, the Court should make an effort to disengage the truth from the falsehood and to sift the grain from the chaff. It is an error to take an easy course of holding the evidence discrepant and the whole case untrue. This is undoubtedly a case where an effort is to be made to disengage the truth from the falsehood. It is an error to take an easy course of holding the evidence discrepant and the whole case untrue. This is undoubtedly a case where an effort is to be made to disengage the truth from the falsehood. 21. To begin with, shall first of all consider the statement of Mst. Jadao Bai P.W. 10 and Mst. Gulab Bai (P.W. 9). No one has seen the accused Ramlal Singh and his companions (the other accused) cause any injury either to Fatehsingh and Jagannath (deceased) or to Keshar Singh who his survived the injuries that were inflicted upon him. But the evidence of P.W. 9 and P.W. 10, shows that after giving the beating in the field Ram lal Singh went to the village and like a hero announced that he had finished the whole family. On hearing the news, these two ladies went to the field and found Fatehsingh, Jagannathsingh & Keshar Singh lying injured. Mst. Gulab Bai P.W. 9, believing the news, also took a pot of water to give water to the injured, because It is usual to give water in such cases. There is nothing in their statements on this point to discredit their testimony and the trial Court has also believed them on this point. 28. Mst. Jadav Bai P.W. 10, has also stated that she saw all the accused go to the field, and that after giving a beating when they returned, their clothes were smeared with blood. But I do not believe this statement of hers, because if it were so, then at the time the F.I.R. was lodged by the Chowkidar (P.W. 6) she should have either told this to the Chowkidar, who was all along with her from the field to the Police Station, or she should have told the Thanedar then and there. But she did neither. 29. Mst Gulab Bai, P.W. 9, white taking water to the field, met Lachhman Chowkidar of the village (P.W. 6) and told him that Ram lal Singh accused had killed all the three members of the family. She says that Ramlal gave the news to her and her mother-in-law (P.W. (10).This witness says that accused Ramlal Singh told her that his pocket was full of money. He showed a wrapped cloth in which he carried the currency notes. 30. She says that Ramlal gave the news to her and her mother-in-law (P.W. (10).This witness says that accused Ramlal Singh told her that his pocket was full of money. He showed a wrapped cloth in which he carried the currency notes. 30. Lachhman Chowkidar (P.W. 6) says that he met the wife of Jagannath Singh (Gulab Bai P.W. 9) who said that Ramlal and others had killed all the members of the family. On hearing this, he went to the place and found all the three persons lying unconscious. He later on arranged to send the injured to Thana Machalpur in a bullock cart and he and Mst. Jadao Bai (P.W. 10) also Went to the Thana, where a report Ex. P. 3 was made. He states that when he reached the Thana, he found accused Ramlal Singh there. Mst. Gulab Bai also (P.W. 9) said that after announcing the news to her and her mother-in-law (P.W. 10), and after telling her that he bad money with him, accused Ramlal Went to the Thana, And no doubt the accused was at the Thana, when the Chowkidar arrived there and made the report. The statement of this witness appears to be true. 31. Now the other two important witnesses in this case are Narain Singh P.W. 1 and Keshar Singh P.W. 2. 32. Narainsingh P.W. 1 is a boy of 13 years of age and is said to have accompanied Fateh Singh, his father and uncle Jagannath when they went to the field. The trial Court has observed that this witness (Narain Singh P.W. 1) aged 13 years, appeared to be sufficiently intelligent to understand and answer questions. Although evidence of a person of tender age may be considered, yet the fact must not be lost sight of that he can be easily tutored and with remarkable memory reproduce what he has been told. After going through his evidence I have no doubt that he is a tutored witness. He says that he saw all the accused give a beating to Fateh Singh, Jagannath and Keshar Singh. He got frightened, when one of the acused Amar Singh ran after him. He took to heels and ran away to hide himself in a jungle nearby. He met Gopia Chamar (P.W. 21) and told him that he was being pursued by Anarsingh and sought his help. He got frightened, when one of the acused Amar Singh ran after him. He took to heels and ran away to hide himself in a jungle nearby. He met Gopia Chamar (P.W. 21) and told him that he was being pursued by Anarsingh and sought his help. He says that Gopia Chamar had him in (sic). After the accused had gone away, he came out from the Bush and went to the scene of occurrence. By this time, his mother Mst. Gulab Bai (P.W. 9), his grand-mother Mst. Jadav Bai P.W. 10) and Lachhman Chowkidar had arrived there. But it is significant that nether P.W. 9 nor P.W. 10 nor the Chowkidar P.W. 6 make any mention in their depositions of having met this witness. If he had met any of them, he would have certainly given out the names of the assailants and they could have been entered in the F.I.R. 33. Gopia Chamar (P.W. 21) says that the boy (P.W. 1) had come to him in the jungle while he was asleep. He told him that Ramlal was beating him. He therefore hid the boy in the bush and went away. It is surprising that P.W. 1 did not tell Gopi about the beating which was being given to his uncle, father and grand-father. I am afraid I cannot believe that the boy was present there and saw the assailants. 34. Keshar Singh P.W. 2 is one of it persons who had been injured in the light. He says that Ramlal him on the head a sword, that Gheesa accused gave him a blow with a Fharsi and that the other accused also attacked him. The medical evidence supports the induction of injuries, which are about nine in number. He says that he fell down and then the accused left him and proceeded in the direction where Fateh Singh and Jagannath (his sons) were. He saw all the accused give a heating to his sons. The first persons to arrive after this incident was his wife (Mst. Jadao Bai P.W. 10). Then came Motilal and after him the Chowkidar. He states that he had related the incident to his wife and had also told her the names of the assailants. He says that he was conscious while he was being carried to the Police-Station in a bullock cart, but that he became unconscious before the F.I.R. was made. Then came Motilal and after him the Chowkidar. He states that he had related the incident to his wife and had also told her the names of the assailants. He says that he was conscious while he was being carried to the Police-Station in a bullock cart, but that he became unconscious before the F.I.R. was made. The statement of this witness requires careful scrutiny to sift the grain from the chaff. 35. I shall first of all weigh the fact whether this witness (P.W. 2) was conscious when his wife and Chowkidar arrived there and whether he had revealed the names of the assailants to his wife. In his Police statement (Ex. B A), he had stated that he fell down unconscious and did not know what happened afterwards. When confronted with his Police-statement, be replied that he might have said so but that he did not remember it. This explanation is unsatisfactory, not only because he has contradicted himself but also because his wife Mst. Jadao Bai P.W. 10 does not say that her husband told her the names of the assailants. In fact she says that when he arrived at the scene, she saw her husband Keshar Singh, lying unconscious. She even says that she tried to speak to him but he did not respond. Lachhman Chowkidar P.W. 6, also states that when he reached the place, he found Keshar Singh absolutely unconscious. In the circumstances, I hold that in the course of beating, Keshar Singh became unconscious and be did not see his two sons Fatehsingh and Jagannath Singh being beaten by the accused, nor did this witness tell his wife the names of the assailants. 36. But this does not mean that his whole statement is untrue. He must have, of course, seen those who had attacked him before he became unconscious. The maxim Falsus in uno, falsus in omnibus (False in one thing, false in every thing) is not followed by the Indian Courts. It has no statutory recognition but is merely a rule of procedure. In Persons vs. Huff, 41 Me, 411 (Am) Appletor Judge has observed: The truth of falsehood of testimony depends upon the motives or the balance of motives acting upon the witness at the time of its utterance. It has no statutory recognition but is merely a rule of procedure. In Persons vs. Huff, 41 Me, 411 (Am) Appletor Judge has observed: The truth of falsehood of testimony depends upon the motives or the balance of motives acting upon the witness at the time of its utterance. The motives which influence the human mind are as various as the feelings and desires of man......There is no motive, the action of which upon testimony is uniform. The same motive may lead to truth or to falsehood.....The witness may be exposed to the action of different class of motives as to the several facts to which his testimony may relate. It is obvious therefore that, if the testimony of the same witness, part may be true and reliable and part false and mendacious. A rule of law which requires a jury to infer from one false assertion that all facts uttered by the witness are false statements, is manifestly erroneous. Very recently in Nisar Ali vs. State of Uttar Pradesh A.I.R. 1957 SC 366 their Lordships of the Supreme Court have made the following observation: The maxim 'false in uno falsus in omnibus' has not received general acceptance in different jurisdictions in India; nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to is that in such cases the testimony may be disregarded and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances but it is not what may be called a mandatory rule of evidence. It is difficult to define the extent to which this maxim should be disregarded or pushed aside in weighing evidence. But there is no gainsaying the fact that the discretion must be exercised by reference to all the circumstances of each particular case, and, allowance must be made when the motive for uttering a falsehood is patent on the face of it. Id the present case, Keshar Singh P.W. 2, was belabored by the accused; he became unconscious as a result of the injuries and continued to be so for about five days. And when he came round, he must have heard of the death of his two sons. Id the present case, Keshar Singh P.W. 2, was belabored by the accused; he became unconscious as a result of the injuries and continued to be so for about five days. And when he came round, he must have heard of the death of his two sons. He imagined that his sons must have been beaten by the same persons who attacked him and since he had become unconscious, and the names of all the assailants were not in the F.I.R., the witness tried to supply the deficiency by uttering a falsehood. In these circumstances, I See no reason to disbelieve his statement that he himself was beaten by all the accused. I believe his statement so far and no more because I think that he became unconscious while he was being beaten and he could not have seen thereafter those who gave a beating to his sons, Fateh Singh and Jagannath. 37. Having dealt with the evidence of beating Keshar Singh. I now consider what evidence there is of the murder of Fateh Singh and Jagannath. 38. I have already dealt with the testimony of Narayra Singh P.W. 1, and Keshar Singh P.W. 2. I have held that Narayan Singh was not present at the scene of occurrence and that Keshar Singh having become unconscious could not have seen those who had beaten his sons. I have rejected that part of his statement in which he said that before becoming unconscious he had told his wife the names of the assailants. Because if he had done so, the names of the assailants would have been mentioned in the F.I.R. 39. Besides these, there is the evidence of Jadao Bai (P.W. 10) and Gulab Bai (P.W. 9). P.W. 10 (Jadao Bai) wife of Keshar Singh says that when Ramlal Singh returned to the village after beating her husband and two singh in the field, and told her what he had done. She saw him and the other five accused with blood smeared clothes. But P.W. 9 (Gulab Bai) does not corroborate P.W. 10 on this point though both were there. Gulab Bai does not say that she saw the other accused with blood-smeared clothes. If it were so, the names of the accused would have been mentioned in the F.I.R. and no besmeared clothes except those of Ramlal Singh accused have been recovered by the prosecution. 40. Gulab Bai does not say that she saw the other accused with blood-smeared clothes. If it were so, the names of the accused would have been mentioned in the F.I.R. and no besmeared clothes except those of Ramlal Singh accused have been recovered by the prosecution. 40. There is no doubt that after the incident, accused Ramlal Singh went to Police Station Machalpur and lodged a report. In this report he said that there was quarrel about the grazing of the cattle, that Keshar Singh and his two sons (Fateh Singh and Jagannath Singh) gave him a beating (he was slightly injured too) and that he in return beat them also. This report is Ex. P. 13 and though the accused has denied making it, yet it has been proved by the Investigating Officer (P.W. 20). But a part of this report amounts to a confession and as held by a Division Bench of the Madhya Bharat High Court in Ranjit vs. State, reported in 1954 M.B.L.J. 1406, it must be entirely excluded. I was a member of the Division Bench which took that view and explained the reasons for its exclusion. The Nagpur High Court in Bharosa Ramdayal vs. Emperor A.I.R. 1941 Nag 86) had taken a contrary view. The Nagpur view was that the whole of the F.I.R. by an accused need not be excluded from admission, that merely the confessional part is to be excluded. In view of this conflict, would have liked to refer this case to a Full Bench, but my attention has been drawn towards A.I.R. 1957 S.C. 366 (Nisar Ali vs. The State of Uttar Pradesh) in which their Lordships have observed: A first Information Report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under Sac. 157, Evidence Act, or to contradict it under S. 145 of that Act. It can not be used as evidence against the maker at the trial if he himself becomes an accused, nor to corroborate or contradict other witness. 41. These observations exclude the entire report of the accused from being considered In any manner. 42. Thus the evidence is not sufficient to told the accused guilty of offences under Section 302 read win Sec. 149 for the murder Of Fateh Singh and Jagannath. There is a suspicion, but no judicial proof. 43. 41. These observations exclude the entire report of the accused from being considered In any manner. 42. Thus the evidence is not sufficient to told the accused guilty of offences under Section 302 read win Sec. 149 for the murder Of Fateh Singh and Jagannath. There is a suspicion, but no judicial proof. 43. The defence of all the accused is alibi. The trial Court has rejected the plea and the Learned Counsel for the appellants has not thought it fit to refer to the plea which is unsupported by any evidence. 44. On a consideration of the entire evidence I come to the following conclusions: (1) That all the accused gave a beating to Keshar Singh P.W. 2, and, that having regard to injuries they inflicted the accused have been rightly convicted and sentenced under Section 307 Indian Penal Code read with Section 149 I.P.C. (2) With regard to their convictions under Section 302 read with Sec. 149 Indian Penal Code, the evidence on record raises a suspicion that the accused have committed the offences, but mere suspicion, however strong, cannot take the place of judicial proof. The accused must, therefore, be given the benefit of doubt. 45. In result, I would partly accept appeals Nos. 69 of 1957 and 83 of 1957 and set aside the convictions and sentences under Section 302 read with Section 149 Indian Penal Code. But I would confirm the conviction and sentence under Section 307 read with Section 149 Indian Penal Code. 46. Criminal Reference No. 3 of 1957 is rejected. 47. This appeal (No. 69 of 1957), and the connected appeal (No. 8) of 1957) and criminal reference (No. 3 of 1957) were heard by Khan and Krishnan, JJ. of the Gwalior Bench of this Court. As the learned judges have differed in their conclusions, the appeals together with the Criminal reference have been referred to me under orders of the Hon'ble the Chief Justice. 48. The present appellant Ramlal add the appellants in the connected appeal viz., Ghisalal. Kahansingh, Anarsingh, Harisingh and Puria, were convicted by the Additional Sessions Judge, Shajapur, (i) under section 148 of the Indian Penal Code, (ii) under section 307 read with section 149 of the Indian Penal Code and (iii) on two counts under section 302 read with section 19 of the Indian Penal Code. Kahansingh, Anarsingh, Harisingh and Puria, were convicted by the Additional Sessions Judge, Shajapur, (i) under section 148 of the Indian Penal Code, (ii) under section 307 read with section 149 of the Indian Penal Code and (iii) on two counts under section 302 read with section 19 of the Indian Penal Code. For the offence under section 148 they were sentenced to undergo rigorous imprisonment for a period of one year each for the offence under section 307 read with section 149 each of them was sentenced to undergo rigorous imprisonment for a period of five years, and for each of the two counts under section 302 read with section 149. Ramlal was sentenced to death and the other accused were sentenced to undergo imprisonment for life. The sentences of imprisonment were ordered to run concurrently. 49. Krishanan, J. is of the opinion that none of the offences has been proved, and accordingly all the accused are entitled to be acquitted. While agreeing that the offences on two counts under section 302 read with section 149 of the Indian Penal Code have not been proved, Khan, J. is of the opinion that all the accused are guilty under section 307 read with section 149 of the Indian Penal Code. The learned judge has not recorded any opinion in respect of the offence under section 148 ibid, but if his view as regards the offence under section 307 read with section 149 of the Indian Penal Code prevails, then the conviction of the accused under section 148 of the Indian Penal Code shall be consequential. 50. It was contended on behalf of the State that the learned Judges have come to an erroneous finding as regards the guilt of the accused on two counts under section 302 read with section 149 of the Indian Penal Code on a misreading of the evidence on record. This reference is governed by clause 26 of the Letters Patent, under which I am entitled to decide only the point of difference between the learned Judges and not any point on which they have agreed. Therefore, only the question of the guilt of the accused under section 148 and under section 307 read with section 149 of the Indian Penal Code falls for my consideration. 51. Kesharsingh (P.W. 2) is the brother of Devisingh, father of accused Ramlal, Ghisalal and Karansingh. Therefore, only the question of the guilt of the accused under section 148 and under section 307 read with section 149 of the Indian Penal Code falls for my consideration. 51. Kesharsingh (P.W. 2) is the brother of Devisingh, father of accused Ramlal, Ghisalal and Karansingh. Accused Anarsingh and Harisingh are the sons of accused Karansingh and accused Puria is a field servant of the family. Fatehsingh and Jagannath, who were murdered, were the sons of Kesharsingh (P.W. 2). Narayansingh (P.W. 1) is the son of Fatehsingh. Gulabbai (P.W. 9) is the widow of Jagannath, and Jadaobai (P.W. 10) is the wife of Kesharsingh (P.W. 2). 52. It appears that the two branches of the family were on inimical terms from the last about a year on account of dispute over grazing land. On the date of the incident, viz. 19th July 1935, accused Ramlal came out With a sword threatening Kesharsingh (P.W. 2) and his two sons Fatehsingh and Jagannath (deceased), when Dhulia (P.W. 8) and Ghisa (P.W. 13) intervened and shut accused Ramlal in his room. This happened sometime before noon. Kesharsingh (P.W. 2) then went to mould Kachhikhedi, which is at a distance of two miles from his village Kolikheda, and brought Kalu (P.W. 11), a common relation of the two branches of the family for pacifying accused Ramlal. Kalu (P.W. 11) talked to accused Ramlal, when he complained of a previous incident resulting in the loss of his tooth and said that he was likely to be beaten again by the members of the other branch. Kalu (P.W. 11) told him that no such thing would happen. During the talk, the other five accused had come armed with lathis; but when the matter was settled, they went away towards their fields and Ramlal followed them. This part of the prosecution case is not open to doubt and has also been accepted by the learned Judges. 53. Kesharsingh (P.W. 2), after bringing Kalu (P.W. 11) to his village, went towards his field where his two sons Fatehsingh and Jagannath (deceased) had gone earlier after accused Ramlal had threatened them with a sword. Accordingly, Kalu (P.W. 11) alone had talked with accused Ramlal. Keshatsingh (P. W, 2) went towards his field as he was afraid that accused Ramlal might attack his sons. Accordingly, Kalu (P.W. 11) alone had talked with accused Ramlal. Keshatsingh (P. W, 2) went towards his field as he was afraid that accused Ramlal might attack his sons. The prosecution case is that while Kesharsingh (P.W. 2) was on the way, accused Ramlal and the other five accused overtook him in the field of one Jagannath and struck him with sword, farsas and lathis as a result of which he fell down. Seeing this incident, Fatehsingh and Jagannath (deceased) came from their field to help their father, but the six accused attacked them in the field belonging to Dhulia, where they also fell down. Accused Ramlal then went to the village and boasted before Jadaobai (P.W. 10) that he had exterminated her family. Gulabbai (P W. 9) and Jadaobai (P.W. 10) then went with a lota of water and found Kesharsingh (P.W. 2) and his two sons Fateh singh and Jagannath (deceased) lying injured on the spot. Laxman, Chowkidar, (P.W. 6) and Motilal (P.W. 12) who accompanied them, arranged for taking the injured to the police-station. As they were being carried in a bullock-cart, Jagannath died when they crossed the boundary of the village, while Fatehsingh died subsequently when the party reached the police-station. 54. Kesharsingh (P.W. 2) said that he remained unconscious for about 4 or 5 days, but there is no corroborative evidence on this point. Amongst, the injuries sustained by him, there were 3 incised wounds on the head and one on the light little finger, and also 2 contusions and an abrasion. He had also a fracture of the lower one third right ulna which caused a permanent disability. In the opinion of Dr. Pustake (P.W. 18), the incised wounds could be caused by a sharp weapon and the other injuries by a hard and blunt object. He was, however, of the opinion that the injuries were net dangerous. 55. The trial Court disbelieved the eyewitnesses, viz., Bheru (P.W. 3), Kishan (P.W. 4 and Kaniram (P.W. 5). Krishnan, J. remarked that they were disbelieved for good reasons. Their evidence has not been adverted to by Khan, J., indicating that he also did not rely upon it. So also the learned Judges have discarded the evidence of Narayansingh (P.W. 1) who is a mere boy and has not been supported by Gopi (P.W. 21) on what he narrated to him about the incident. Their evidence has not been adverted to by Khan, J., indicating that he also did not rely upon it. So also the learned Judges have discarded the evidence of Narayansingh (P.W. 1) who is a mere boy and has not been supported by Gopi (P.W. 21) on what he narrated to him about the incident. This leaves only the evidence of Kesharsingh (P.W. 2) to determine the guilt of the accused under section 148 as also under section 307 read with section 149 of the Indian Penal Code. 56. As already stated, the two branches of the family were not on good terms from the last about a year. This calls for caution in accepting the testimony of Kesharsingh (P.W. 2). He has named all the six accused as his assailants. So far as accused Ramlal is concerned, the evidence of Kesharsingh (P.V. 2) is corroborated by the two injuries on his own person for which he had made a report (Ex. P. 13) at the police-station. There is therefore no reason to disbelieve Kesharsingh (P.W. 1) so for as he implicates accused Ramlal. 57. There is, however no corroboration of the evidence of Kesharsingh (P.W. 2.) as regards the other accused. Jadaobai (P.W. 10) doubtless stated that she saw the five accused besmeared with blood when they returned from the scene of the occurrence. Her evidence, however, does not find support from Gulabbai (P.W. 9) and no incriminating articles were also found in their possession. It was, however, urged that corroboration was available against these accused because they were seen going together towards their field by Dhulia (P.W. 8) Kalu (P.W. 11) and Ghisa (P.W. 13). Their evidence shows that they went ahead and accused Ramlal followed them indicating that they did not go as members of one assembly. These witnesses further stated that they had only lathis, whereas Kesharsingh (P.W. 2) said that at the time of the attack on him accused Ghisalal and Karansingh were armed with farsas. It may also be noted that the attack on Kesharsingh (P.W. 2) took place sometime after Kalu (P.W. 11) had pacified accused Ramlal. The attack upon him there fore cannot be correlated with any earlier act of the accused. In view of his enimical relations wit the accused the possibility of Kesharsingh (P.W. 2) trying to implicate even innocent members, of their family cannot be eliminated. The attack upon him there fore cannot be correlated with any earlier act of the accused. In view of his enimical relations wit the accused the possibility of Kesharsingh (P.W. 2) trying to implicate even innocent members, of their family cannot be eliminated. For want of corroboration, therefore, the evidence of Kesharsingh (P.W. 2) is not safe for reliance against the other accused, but there is no reason why, having regard to the corroboration already indicated, he should not be believed as against accused Ramlal. 58. In the circumstances indicated above, it cannot be predicated how many persons attacked Kesharsingh (P.W. 2). In view of the, fact that he sustained injuries both by a sharp weapon and by a hard and blunt object, all that can be inferred is that more than one person attacked him. This, however, does not mean that five or more persons had joined in the attack. The charge under section 148, and consequently under lection 149, of the Indian Penal Code, therefore, fails. As a result, accused Ramlal can only be convicted for his own act and not for the acts of others. The question is what offence has been committed by him. 59. According to Kesharsingh (P.W. 2), more than one person had used a sharp weapon. All the incised wounds caused to him cannot, therefore, be ascribed to accused Ramlal. How many such wounds and on what part of the body they were caused by him cannot also be postulated with certainty. However, even if he caused all the three incised wounds on the head, they were, according to Dr. Pustake (P.W. 18), only simple wounds and were not dangerous to life It has already been indicated that the version of Kesharsingh (P.W. 2) that he was unconscious for 4 or 5 days has not been corroborated by any other evidences. It seems that he deliberately exaggerated his condition with intent to enhance the guilt of the accused. The criminal intention or knowledge of the accused would properly be indicated by the nature of the injuries caused by him, which were only of a superficial nature, and not by what he is alleged to have talked 10 Jadaobai (P.W. 10) after the incident. He was then talking in a spirit of bravado and should not be taken seriously. The criminal intention or knowledge of the accused would properly be indicated by the nature of the injuries caused by him, which were only of a superficial nature, and not by what he is alleged to have talked 10 Jadaobai (P.W. 10) after the incident. He was then talking in a spirit of bravado and should not be taken seriously. His criminal intention or knowledge cannot obviously be (sic) from the nature of the injuries caused to the sons of Kesharsingh (P.W. 2) in the subsequent attack with which he is not found to be connected. In these circumstances, his guilt extends only to section 324, and not section 307, of the Indian Penal Code. As regards the sentence, he should be awarded the full term of, rigorous imprisonment under that section, viz., three years. 60. In the result, I would allow appeal No. 83 of 1957 and acquit accused Ghisalal, Karansingh, Anarsingh, Harisingh and Puria of all the charges. I would father partly allow the present appeal (No. 69 of 1957) acquit accused Ramlal of the charges framed against him and convict and sentence him to rigorous imprisonment for three years under section 324 of the Indian Penal Code. The criminal reference should accordingly be rejected. Appeal allowed.