JUDGMENT 1. 1. This appeal by the two appellants, namely, Inder and Nirbhiy Ram, is directed against the judgment of the Additional Sessions Judge, Jhalawar, dated 25-11-1971, convicting them of an offence punishable under section 302 read with section 34. I.P.C., for having committed the double murder of two brothers Mod Singh and Ram Singh. They have each been sentenced to imprisonment for life. 2. The case of the prosecution, in brief, is as follows:- On the night of 13/14th May, 1971, while the two brothers Mod Singh and Ram Singh were returning on foot from Choumahala Mandi to their village Khejaria, the two accused persons, Inder and Nirbhay Rani, who are also brothers, way-laid them between village Harnikhera Padlia and assaulted them with Lathis resulting in their death. 3. The first information report Ex. P. 1 was lodged by Lal Singh P. W. 1, son of the deceased Mod Singh, at Police Station, Gangdhar, on 14-5-1971 at 2 p.m. In the report, he mentioned that the relations between the two accused persons Inder and Nirbhay Ram and his father Mod Singh and uncle Ram Singh, were highly strained on account of litigation and expressed his suspicion that they were the persons who had caused their death by assaulting them with Lathis. 4. It is alleged that there was long standing litigation between the parties over land and their relations were extremely strained. On 13-5-1971, the deceased Mod Singh and Ram Singh and the two accused Inder and Nirbhay Ram had been to Bhawani rnandi to attend to a case between them which was pending there. They boarded a local shuttle train at Bhawani Mandi after attending to the hearing. The two accused persons Inder and Nirbhay Ram also travelled by the same train. They all got down at Choumahala Mandi. It is further alleged that the t,wo accused persons along with their two companions, namely, Nanu Ram and Khema, to wreak their vengeance, followed the two deceased-, Ram Singh and Mod Singh and intercepted them on the way to village Khejaria, where they were done to death. 5. The statement of Dr. R. C. Dube, Medical Officer, Gangdhar, recorded in the committal court, who performed the post-mortem on the dead bodies of the deceased Ram Singh and Mod Singh, has been placed on record. The post-mortem report shows that the deceased Ram Singh had the following external injuries (1). 5. The statement of Dr. R. C. Dube, Medical Officer, Gangdhar, recorded in the committal court, who performed the post-mortem on the dead bodies of the deceased Ram Singh and Mod Singh, has been placed on record. The post-mortem report shows that the deceased Ram Singh had the following external injuries (1). Lacerated wound over : left parietal region of the head 5" x 1/4"x 1/4". (2). Lacerated wound over left temporal region of the head, size of the wound is 3" x 1/4" X 1/4" (3). Lacerated wound over right eye-lid 3" X 1/4" x 1/4" On dissection, he found the following internal injuries (1) Fracture of left humorous bone in lower one third. (2) Fracture of radius and ulna bone of left wrist. (3) Fracture of radius and ulna bone of right hand in upper one-third. (4) Fracture of left parietal hope of head. (5) Fracture of the left temporal bone of the head. (6) Internal examination beneath scalp : Scalp is injured, accumulation of clotted blood in the muscles underneath the injuries and in between the scalp and skull bone. The left parietal and temporal bone of head fractured underneath the injury membrance injured : Brain. Accumulation of clotted blood in between the membrance and brain beneath the injury. The brain, as a whole, congested. The dead body of the deceased Mod Singh had the following external injuries:- (1) Lacerated wound over left mastoid process 3" x 1/4" x 1/4" (2) Lacerated wound over right parietal bone of the head, the size of the wound is 5" x 1/4"x 1/4". (3) Lacerated wound over right temporal bone size 4" x 1/4" x 1/4". (4) Contusion 1/2" x 1/2" over right wrist joint. (5) Contusion 1/2 x 1/2 over upper part of right tibia. (6) Lacerated wound 2" x 1/4" x 1/4" over upper part of Tibia (left). On dissection, he found the following internal injuries:- (1) Fracture of right parietal bone of the head. (2) Fracture of right temporal bone of the head. (3) Fracture of left mastoid process. (4) Fracture of left humorous bone on lower ⅓rd. (5) Fracture of upper third of right tibia and fibula bone. (6) Fracture of tibia of left side. (7) Internal examination of scalp ; Scalp is injured on right parietal and right temporal side. (2) Fracture of right temporal bone of the head. (3) Fracture of left mastoid process. (4) Fracture of left humorous bone on lower ⅓rd. (5) Fracture of upper third of right tibia and fibula bone. (6) Fracture of tibia of left side. (7) Internal examination of scalp ; Scalp is injured on right parietal and right temporal side. Scalp fracture of right parietal and right temporal bone of the head and also fracture of left mastoid bone. (8) Membrance is injured below the injuries. (9) Brain : Accumulation of clotted blood in between the membrane and brain beneath the injuries. 6. In his opinion, the cause of death of deceased Ram Singh and Mod Singh was due to shock and haemorrhage resulting from fracture of their skulls. From the evidence of the Doctor, it is quite clear that the deceased Mod Singh and Ram Singh, were brutally murdered by persons with a heavy blunt-object like Lathi. 7. The two accused abjured their guilt and denied commission of the alleged offences. Their defence was one of complete denial, They denied that they met the deceased persons at Choumahala or had done them to death. 8. The conviction of the two accused, Inder and Nirbhay Ram, rests purely on circumstantial evidence. The circumstances relied upon by the prosecution are two, namely, (1) due to long standing litigation, the accused persons had a strong motive in doing away with the deceased ; and they had the opportunity of achieving their object on the night in question : and (2) they were last seen together , going towards Kundia Road i e., on their way to village Khejria, on the fateful night, the deceased persons were never seen alive thereafter. 9. The prosecution examined as many as 7 witnesses, namely, Shobha Ram P. W. 5, Basanti Lal P. W. 6, Ram Lalta P. W. 7, Nanu Ram P. W. 8. Onkar son of Modji P. W. 6, Shankerial P. W. 10, and Onkar son of Bheruji P. W. 12, of these, three witnesses, viz., Nanu Ram P. W. 7, Onkar son of Modji P. W. 9. and Onkar, son of Bheruji P. W. 12, turned hostile. 10. Onkar son of Modji P. W. 6, Shankerial P. W. 10, and Onkar son of Bheruji P. W. 12, of these, three witnesses, viz., Nanu Ram P. W. 7, Onkar son of Modji P. W. 9. and Onkar, son of Bheruji P. W. 12, turned hostile. 10. The learned Additional Sessions Judge, relying upon the testimony of Basanti Lal P. W. 6, as corroborated by Ram Lal P. W. 12, Shobha Ram P. W. 5, Nanu Ram P. W. 8, Shanker Lal P. W. 10 and Jaswant Singh P. W. 21, held that on the night in question, the two accused persons, Inder and Nirbhay Ram, who were on enemical terms with the deceased Mod Singh and Ram Singh, followed them from the shop of Basanti Lal P. W. 6, at Choumahala ; that they proceeded towards Kundia Road armed with Lathis and way-laid the deceased Mod Singh and Ram Singh in between village Harnkhera and village Padariya ; and that it was only they, who must have assaulted the deceased persons with Lathis causing their death. In his view, the circumstantial evidence led by the prosecution lead to no other inference except that of guilt. He also placed reliance on the alleged extra-judicial confession made by the accused before Nanu Ram P.W. 8 in reaching the conclusion that he did. 11. In a case testing on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. In other words, where the evidence against the accused consists of circumstantial evidence, then in order to justify the inference of guilt, the inculpatory facts must he incompatible with the innocence of accused. That test is not fulfilled in the facts and circumstances of the present case. We are afraid, the learned Additional Sessions Judge has acted on mere surmises and conjectures in holding that the accused and no others "must" have committed the murders in question. On the evidence on record, he could only find that they "may" have done so. As observed by the Supreme Court, there is a long distance to travel between "may" and "must". 12. On the evidence on record, he could only find that they "may" have done so. As observed by the Supreme Court, there is a long distance to travel between "may" and "must". 12. Though there is strong suspicion against the two accused Inder and Nirbhay Ram that they mercilessly assaulted the deceased Mod Singh and Ram Singh with Lathis resulting in their death while they were on their way from Choumahala Mandi to village Khejaria. We are morally convinced that no other persons would have done so, but the conviction of these accused must rest on legal evidence and not on mere suspicion, for suspicion cannot take the place of proof. They undoubtedly bad strong motive as well as the opportunity to commit murder of the deceased. 13. The prosecution has led evidence showing that (i) there was strong long standing enemity due to litigation between the accused Inder and Nirbhay Ram and the deceased Mod Singh and Ram Singh, (ii) on 13-5-1971, they had all gone to Bhawani Mandi for attending to the hearing of the case, along with their (Witnesses, (iii) they travelled by local shuttle train and both the accused as well as the deceased got down at Choumahala Mandi, (iv) at about 8.30 p. m., the deceased Mod Singh and Ram Singh went to the shop of Basanti Lal P.W. 6 while the accused Inder and Nirbhay Ram came and sat at the shop of Shankerlal Darji P.W. 10, which was opposite to it, (v) after a while, the accused persons left towards Kundia Road with the accused Inder armed with a Lathi and (vi) after about half-an-hour, the deceased left the shop of Basantilal and went towards Kundala Road i.e., in the same direction on their way back to village Khejaria. 14. It has thus been proved that the deceased Mod Singh and Ram Singh as well as the accused Inder and Nirbhay Ram went in the same direction on the night in question i.e., from Choumahala Mandi to their village Khejaria at about 11 p.m. Shobha Ram P.W.5 saw them on the way near village Harnikhera. The accused Inder and Nirbhay Ram were ahead of the deceased Mod Singh and Ram Singh. At the time, he saw the accused Inder armed with a Lathi. The accused Inder and Nirbhay Ram were ahead of the deceased Mod Singh and Ram Singh. At the time, he saw the accused Inder armed with a Lathi. When he returned in the same direction in the morning at about 6 a.m., this witness saw the dead bodies of Mod Singh and Ram Singh lying in between village Harnikhera and village Padaria. These are all the circumstances brought on record. It cannot be said that the evidence is only consistent with the hypothesis of the guilt of the accused. 15. The testimony of Basanti Lal P.W. 6 shows that when the deceased Mod Singh and Ram Singh returned from Bhawani Mandi, they came and stopped at his shop at about 8-30 p.m. At that time, he stated, he was sitting on a Chabutara outside the shop, along with Rama Maharaj and a Kanungo. A couple of minutes before, the accused Inder and Nirbhay Ram had reached the shop of Shankerlal Darji P.W.10 accompanied by Nanu Ram. He saw the accused Inder armed with a Lathi, but Nirbhay Ram had no weapon in his hand. After a while, the accused Inder and Nirbhay Ram went towards Kundia Road. The deceased Mod Singh and Ram Singh stayed at his shop for about half-an-hour and after wishing him, they also went towards Kundia Road. They were followed by the co-accused Nanu Ram, Khema and one other. He further states that in the morning at about 6 a.m., he saw all the 4 accused and their companions at the shop of Shankerlal Darji P.W. 10. They called for Shanker Lal and then took their things which were kept in the shop and left towards the village Kalbi. This witness states that the way to Kundia Road, till it takes a turn, is visible from bis shop upto a distance of 1500 paces, and he saw the accused as well as the deceased persons going towards Kundia Road i.e., in the same direction, from a distance of 100 paces. 16. No doubt, this witness asserts that when he had asked the accused Inder some 2 or 3 months before to come to an amicable settlement, he uttered a threat "Unka (Mod Singh and Ram Singh) to kanta kat dunga". He, however, admits during his cross-examination, that he had not divulged this fact to any one. 16. No doubt, this witness asserts that when he had asked the accused Inder some 2 or 3 months before to come to an amicable settlement, he uttered a threat "Unka (Mod Singh and Ram Singh) to kanta kat dunga". He, however, admits during his cross-examination, that he had not divulged this fact to any one. The testimony of this witness is corroborated, to some extent, by that of Shobba Ram P.W.5 and Ram Lal P.W.7 and Nanu Ram P.W.8. 17. The version of Nanu Ram P.W.8 is somewhat different. He states that the deceased Mod Singh and Ram Singh were the first to leave towards Kundia Road followed by the accused Inder and Nirbhay Ram. According to him, the accused Nirbhay Ram left him and the co-accused at the shop of Shanker Lal asking them to get their meals prepared and then he, Khema and Naniya slept there. He suggests that in the morning the accused Inder and Nirbhay Ram came back to the shop of Shankerlal. This witness further asserts that when he asked the accused where they were, Nirbhay Ram accused told him that they had finished the deceased Mod Singh and Ram Singh by assaulting them with Lathis. 18. The learned Additional Sessions Judge has relied upon the extra-judicial confession made by the accused before this witness. As it is, extra-judicial confession is a weak type of evidence and cannot he the sole basis for conviction unless corroborated by other circumstances. We would have unhesitatingly acted upon the evidence of extra-judicial confession in a case like this if the witness was reliable, but, unfortunately, Nanu Ram P.W. 8 cannot be relied upon because his veracity as a witness of truth is doubtful. There can be no doubt that he is a self condemned liar. Evidently Nanu Ram P. W. 8 was an eye-witness to the occurrence, as appears from his case diary statement Ex. D. 5, but this witness was won over in the committal court. The result is that the prosecution is left with no direct evidence. We certainly cannot make use of his statement in the police case diary Ex. D. 5. 19. Nanu Ram P. W. 8 and Onkar P. W. 9 had both accompanied the deceased Mod Singh and Ram Singh to Bhawanj Mandi as their witnesses, who travelled in the same local shuttle train and got down at Choumahala Mandi. We certainly cannot make use of his statement in the police case diary Ex. D. 5. 19. Nanu Ram P. W. 8 and Onkar P. W. 9 had both accompanied the deceased Mod Singh and Ram Singh to Bhawanj Mandi as their witnesses, who travelled in the same local shuttle train and got down at Choumahala Mandi. That being so, it was but natural that they should all have returned together to their village Khejaria, but it seems that these witnesses spent the night at Choumahala Mandi. 20. The testimony of Onkar P. W. 9 is no better. This witness has also turned hostile. He asserts that he had gone to Bhawani Mandi to give evidence as a witness for the deceased Mod Singh and, Ram Singh on a warrant, but had gone there on the assurance of the accused Inder and Nirbhay Ram that they would bear his expenses. This witness further asserts that he got down from the train at Subhasra. This witness is, therefore, not helpful to the prosecution. 21. The testimony of Shankerlal P.W. 10 is that on the night in question, the accused Shanker and Nirbhay Ram came to his shop at about 8-30 p.m. The accused Inder 'took his Lathi and the accused Nanu Ram took his Potli of chillies which they had kept in the shop and left towards the market saying that they would take their earthen pots in the morning. 22. The testimony of Shobha Ram P. W. 5, who is a Milk-man, shows that that night at 11 p. m., he collected milk at Choumahala Mandi and was proceeding to his village on his bicycle. On the way near the well of Surajmal, he met the accused Inder and Nirbhay Ram and on his querry, they told him that they had been to Bhawani Mandi to attend to the hearing of their case. Near village Harnikhera, he met the deceased Mod Singh and Ram Singh. They asked him to give them a lift but he expressed inability to do so as he was carrying his milk-cane. From his evidence, it appears that the accused Inder and Nirbhay Ram were proceeding ahead of the deceased and accused Inder had a lathi in his hand. At about 6 a.m., when he left his village on bicycle for Choumahala, he found the dead-bodies of Mod Singh and Ram Singh near village Padaria. 23. From his evidence, it appears that the accused Inder and Nirbhay Ram were proceeding ahead of the deceased and accused Inder had a lathi in his hand. At about 6 a.m., when he left his village on bicycle for Choumahala, he found the dead-bodies of Mod Singh and Ram Singh near village Padaria. 23. The prosecution case suffers from serious infirmities. It has merely succeeded in proving that on the night in question the accused Inder and Nirbbay Ram left Choumahala Mandi and proceeded towards Kundia Road, i.e., in the same direction, on their way to their village Khejaria. Beyond this, nothing is established. It is, therefore, difficult to connect the accused Inder and Nirbhay Ram with the commission of the crime. 24. We must, however, observe that we have strong suspicion that the accused Inder and Nirbhay Ram may have along with the co-accused Nanu Ram and Khema committed the murder of the deceased Mod Singh and Ram Singh. For aught we know, the deceased may have been done to death by some other persons. The Additional Sessions Judge has acquitted the co-accused Nanu Ram and Khema giving them the benefit of doubt. 25. From the post-mortem report of Dr. R. C. Dube, it is clear that the deceased Mod Singh and Ram Singh were the victims of a murderous assault. From the nature of the injuries found, it is evident that they must have been assaulted by more than one person armed with Lathis. The prosecution witnesses merely suggest that the accused Inder alone was armed with a Lathi. It is not clear how one person could have assaulted the deceased Mod Singh and Ram Singh and inflicted such multiple injuries on them resulting in their death. Thus the evidence led by the prosecution does not bring home the guilt of the accused beyond all reasonable doubt. 26. The result, therefore, is that the appeal succeeds and is allowed. The judgment and sentences passed by the Additional Sessions Judge are set aside and the appellants Inder and Nirbhay Ram are acquitted of the offence with which they were charged with a direction that they be set at liberty forthwith unless required in connection with some other offences. *******