JUDGMENT : ( 1. ) IN this appeal, the four appellants- Ganpatlal, Gopal Prasad, tulsiram and Ratanlal have challenged their conviction under section 302 read with section 34 of the Penal Code for committing the murder of Jawaharsingh on November 13, 1975 at village Chandeli, district Narsimhapur for which each of them was sentenced to undergo imprisonment for life. ( 2. ) THE prosecution case is this: On November 13, 1975, the deceased jawaharsingh was going with his bullocks which damaged Jawar crop of the field of appellants Ganpatlal and Ratanlal. The four appellants, therefore, assaulted him with lathi, Kholia and barchhi. Shouts of injured Jawaharsingh attracted Chandansingh (P. W. 4), Mansingh (P. W. 3) and Hirasingh who witnessed the assault. Shortly thereafter, Chanchalsingh (P. W. 2), Vijaysingh and Sahabsingh (P. W. 1) also reached the place of incident. They questioned the injured Jawaharsingh as to who had assaulted him, whereupon he told them that the four appellants had assaulted him. ( 3. ) JAWAHARSINGH was removed to the village in an injured condition but expired. A report (Ex. P-1) was lodged at 10 a. m. on November 13, 1975 by chandansingh (P. W. 4), the police-station being at a distance of six miles. ( 4. ) AN inquest was held over the dead-body of Jawaharsingh as per panchanama, Ex. P-12. Dr Agarwal (P. W. 10) performed the post mortem examination on November 14, 1975 and as per report (Ex. P-14) found multiple injuries on the various parts of the body of Jawaharsingh. On internal examination, Dr. Agarwal found as under: (i) There was a lacerated wound over the left lung caused due to probably broken rib, of 1/2" X 1/2" X 1/2" over the lateral aspect of lower lobe, corresponding to 8th rib which was also found fractured. (ii) There was simple fracture of 5th rib to 9th ribs on the right side and of the 5th to 8th ribs on the left side. (iii) There was simple fracture of right humerus of lower one third region. (iv) Simple fracture of left ulna in upper one third region. (v) There were tears in the pleura caused due to the fracture of the 8th rib. Dr. Agarwal found that Jawaharsingh died due to syncope, as a result of shock and haemorrhage of injuries to the vital organ like lung. He died within 24 to 48 hours of the post-mortem. (v) There were tears in the pleura caused due to the fracture of the 8th rib. Dr. Agarwal found that Jawaharsingh died due to syncope, as a result of shock and haemorrhage of injuries to the vital organ like lung. He died within 24 to 48 hours of the post-mortem. Cumulatively, all the injuries were sufficient in the ordinary course of nature to cause death. The injury to the lung was sufficient in the ordinary course of nature to cause death. All the external and internal injuries were ante mortem in nature and were caused by hard, blunt and sharp objects. ( 5. ) ON the memorandum of appellant Ratan (Ex. P-2), a Kholia was seized at the instance of appellant Ratan as per seizure memo, Ex. P-3. From the appellant Ratan, a Paijama was seized as per seizure memo, Ex. P-4. On the memorandum of Ganpat (Ex. P-1 0a), a lathi was seized as per seizure memo. Ex. P-5. On the memorandum of appellant Gopal (Ex, P-6), a Kholia was seized as per seizure memo, Ex. P-7. A paijama was seized from the appellant Tulsiram as per seizure memo, Ex. P-8. Another paijama was seized from the appellant Gopal as per seizure memo, Ex. P-9. Simple and blood stained earth were seized as per seizure memo, Ex. P-16a. A broken tooth was seized from the field of Ratanlal as per seizure memo, Ex. P-18. A Gamchha was seized from Chanchalsingh (P. W. 2) as per seizure memo, Ex. P-17. A spot map (Ex. P-19) was prepared by the Patwari, R. P. Shrivastava (P. W. 13 ). ( 6. ) A report of the Chemical Examiner (Ex. P-22) shows that the paijama seized from the appellant Ratan, Kurta and Dhoti of the deceased and the earth seized from the spot were found to be blood stained. The report of the Serologist shows that the paijama seized from the appellant Ratan, Kurta and Dhoti of the deceased and the earth seized from the spot were stained with human blood. ( 7. ) THE appellants abjured their guilt and pleaded false implication. ( 8. ) THE point for decision in this appeal is whether the four appellants in furtherance of their common intention assaulted Jawaharsingh with lathi, kholia and Barchhi causing his death. ( 9. ( 7. ) THE appellants abjured their guilt and pleaded false implication. ( 8. ) THE point for decision in this appeal is whether the four appellants in furtherance of their common intention assaulted Jawaharsingh with lathi, kholia and Barchhi causing his death. ( 9. ) WE have heard Sarvashri Rajendra Singh and S. C. Datt, counsel for the appellants and Shri S. L. Saxena, Government Advocate, for the State. Shri Rajendrasingh did not dispute that Jawaharsingh is dead and that he met with a homicidal death. In fact, there is overwhelming evidence to establish that Jawaharsingh is dead. This evidence consists of his own son and other villagers. The inquest was held over his dead-body as per Panchanama, Ex. P-12. The evidence of Dr. Agarwal (P. W. 10) shows that there were multiple injuries on the person of Jawaharsingh. These injuries were caused by hard, blunt and sharp objects. According to Dr. Agarwal, these injuries were cumulatively and the injury to the lung individually were sufficient in the ordinary course of nature to cause the death of the victim. In face of the above evidence, it could not be disputed and was not disputed before us that Jawaharsingh is dead and that he met his end by violence. ( 10. ) SHRI Rajendrasingh contended that there was deep rooted enmity between the deceased and the appellants; that the prosecution suppressed earlier statements recorded by the head-constable; and that the prosecution attempted to show some of the prosecution witnesses as eye-witnesses though they had not, in fact, witnessed the incident Shri S. L. Saxena, Government Advocate, for the State drew our attention to a report (Ex. P-21 (C)) lodged by the appellant ratanlal the same day in which he stated that the deceased Jawaharsingh was grazing his bullocks in his field and on objection by him, the deceased filthily abused him. According to this report, there did take place a quarrel between the deceased and the appellant Ratanlal. We have considered the submissions of the Advocates on either side. We are of the view that the prosecution has failed to establish the guilt of the four appellants Ganpatlal, Gopal Prasad, tulsiram and Ratanlal under section 302 read with section 34 of the Penal code beyond all reasonable doubt. ( 11. ) BEFORE we discuss the prosecution evidence, we would like to mention a few essential facts. We are of the view that the prosecution has failed to establish the guilt of the four appellants Ganpatlal, Gopal Prasad, tulsiram and Ratanlal under section 302 read with section 34 of the Penal code beyond all reasonable doubt. ( 11. ) BEFORE we discuss the prosecution evidence, we would like to mention a few essential facts. Sahabsingh (P. W. 1) is the brother of the deceased. Chanchalsingh (P. W. 2) is the son of the deceased while Chandansingh (P. W. 4)and Vijaysingh are his nephews. Mansingh (P. W. 3) is the cousin and dhirajsingh (P. W. 5) is the elder brothers son. On the report of the appellant Ratanlal, prosecution was launched against Sahabsingh (P. W. 1), Dhirajsingh (P. W. 5), Chandansingh (P. W. 4), Bharatsingh, Chancbalsingh (P. W. 2), umarao and others in the Court of the Magistrate First Class, Narsimhapur and, in this case, the four appellants were the prosecution witnesses. On one side are Chandansingh (P. W. 4), Sahabsingh (P. W. 1) and others and on the other side the appellants party are facing proceedings under section 107 of the code of Criminal Procedure. These facts indicated that the prosecution witnesses are at loggerhead and on the report of the appellant Ratanlal, the prosecution witnesses were facing the prosecution in the Court of Magistrate first Class, Narsimhapur. Thus, the majority of the prosecution witnesses are not only the relations of the deceased but are on inimical terms with the appellants. The prosecution evidence will, therefore, needs cautious scrutiny and corroboration to their evidence would necessary. ( 12. ) WE also consider it essential to describe the place of incident and the relevant distances. As shown in the spot map (Ex. P-I9), point No. 10 is the field of Ratanlal and was alleged to be the scene of marpit. From this point, the field of Jalamsingh is at a distance of 18 jaribs, i. e. 396 yards. Between the field of Jalamsingh and the scene of assault, the area consists of ups and downs making it difficult for a straight run. It will take about 10 to 12 minutes to reach the scene of assault from the field of Jalamsingh. Between the field of Jalamsingh and the scene of assault, the area consists of ups and downs making it difficult for a straight run. It will take about 10 to 12 minutes to reach the scene of assault from the field of Jalamsingh. There were standing Jawar and Rahar crops Point No. 7 is the place where Chhidami (P. W. 7) heard the shouts of Jawaharsingh and this spot is at a distance of 26 jaribs and 40 kadis from the scene of assault. The house of Jawaharsingh is in the basti and is at distance of half a mile from the place of incident. The spot map thus shows that the prosecution witnesses were at a distance from the place of assault and the village itself was at a distance of half a mile. Thus, on the information of Chhidami (P. W. 7) at the house of Jawaharsingh, the return of the prosecution witnesses and arrival of the prosecution witnesses from the deceased house to the place of assault will mean coverage of a considerable distance and lapse of sufficient time. ( 13. ) KEEPING in view of the above facts we will start scrutinizing the prosecution evidence. ( 14. ) SAHABSINGH (P. W. 1) stated that he in the company of Chanchal, vijay and Roopsingh was sitting near the fire place at the house of Jawaharsingh when Chhidami (P. W. 7) arrived there and informed him that the shouts of "run, I am being killed" are coming from the field of Ratan. On this information, Sahabsingh and others rushed to the field of the appellant Ratan. Sahabsingh further stated that when he reached the field of Ratan, he found jawaharsingh almost unconscious. On being questioned by Chanchalsingh (P. W. 2), the deceased told them that the four appellants had assaulted him. He also questioned Mansingh (P. W. 3), Dhirajsingh (P. W. 5) and Chandan-singh (P. W. 4) and they stated that the four appellants had assaulted Jawaharsingh. Though in the first information report (Ex. P-1) Sahabsingh has been described as an eye-witness, his evidence makes it crystal clear that he had not witnessed the assault. In answer to question No. 19, he stated that the persons present did not narrate the incident because the son of Jawaharsingh was questioning the deceased. Though in the first information report (Ex. P-1) Sahabsingh has been described as an eye-witness, his evidence makes it crystal clear that he had not witnessed the assault. In answer to question No. 19, he stated that the persons present did not narrate the incident because the son of Jawaharsingh was questioning the deceased. In answer to question No. 27, he admitted that Chanchalsingh (P. W. 2), Mansingh (P. W. 3), Vijaysingh and he himself were present when the police arrived in the evening. But at this time no statement were recorded. The police did not question Chanchalsingh (P. W. 2), Mansingh (P. W. 3), Vijaysingh or Dhirajsingh (P. W. 5 ). There is no explanation as to why the police did not question these persons immediately after its arrival in the village. Subsequeatly, it will transpire that Sahabsingh (P. W. 1) was suppressing the truth because there are clear admission of the prosecution witnesses that the head-constable did record statements of the prosecution witnesses which were supressed by the prosecution. ( 15. ) IN answer to question No. 37, Sahabsingh admitted that he did not inform the Patel about the incident. He even did not tell the Kotwar and the Patel of what Jawaharsingh told him. In answer to question No. 43, he admitted that he had not disclosed about the occurrence prior to the arrival of the police. In answer to question No. 53, he stated that though Chandansingh (P. W. 4), dhirajsingh (P. W. 5) and himself had disclosed the names of the assailants to the police, this is missing from his case diary statement (Ex. D-1 ). In view of the above facts, we find that Sahabsingh (P. W. 1) is not a truthful witness and that he had neither seen the assault nor did injured Jawaharsingh tell him the names of the assailants. ( 16. ) CHANCHALSINGH (P. W. 2) stated that on the information of Chhidami (P. W. 7), he rushed to the field of Ratanlal where he found Jawaharsing lying with numerous injuries on his person. On being questioned, his father gave out the names of the four appellants as his assailants. He further stated that he went to the Kotwar and informed him of the occurrence. However, the kotwar was not examined. On being questioned, his father gave out the names of the four appellants as his assailants. He further stated that he went to the Kotwar and informed him of the occurrence. However, the kotwar was not examined. In answer to question No. 14, he admitted that the head-constable had recorded the statements of Dhirajsingh (P. W. 5), chandansingh (P. W. 4) and others and, thereafter the inquest was prepared. In answer to question No. 19, he admitted that at the spot also, the head constable had made enquiries from them and reduced the same to writing. It is, therefore, apparent that the head-constable not only made enquiries from the prosecution witnesses but recorded their statements in writing. These statements have been suppressed and the reason for this suppression is apparent from the answer to question No. 22. ( 17. ) CHANCHALSINGH (P. W. 2) stated that the Sub-Inspector told him that the statements recorded by the head constable were not proper and, therefore, he will take fresh statements and saying so their statements were recorded afresh. This shows that the earlier statements recorded by the head-constable were not in keeping with the present prosecution version and, therefore, their production being detrimental to the interest of the prosecution were deliberately suppressed and fresh statements were recorded to suit the prosecution version. In view of this admission, there is clear evidence of the prosecution padding to suit the prosecution version and the statement of the prosecution witnesses as now put fourth could not be accepted being correct version of the incident because the prosecution witnesses could not be tested by cross-examination on the basis of their earlier versions which contained the narration of the prosecution case immediately after the arrival of the police. ( 18. ) CHANCHALSINGH (P. W. 2) further stands discredited because in his case diary statement (Ex. D-2) he did not state that when Chhidami (P. W. 7) came Sahabsingh, Roopsingh and Vijaysingh were sitting near the fire place. The fact that Vijaysingh, Chandansingh and Mansingh told the names of the assailants is missing from the case diary statement. There is also a contradiction as to whether the deceased or the prosecution witnesses gave out the names of the assailants first. We are, therefore, of the view that Chanchalsingh is entirely an unreliable witness and his evidence deals a death knell to the entire prosecution case. ( 19. There is also a contradiction as to whether the deceased or the prosecution witnesses gave out the names of the assailants first. We are, therefore, of the view that Chanchalsingh is entirely an unreliable witness and his evidence deals a death knell to the entire prosecution case. ( 19. ) MANSINGH (P. W. 3) stated that he has seen the four appellants assaulting Jawaharsingh and Jawaharsingh named the four assailants in his presence. He stated that he was cutting grass in the field of Chandansingh (P. W. 4) and Dhirajsingh (P. W. 5 ). In answer to question 60, he stated that though he had told the police that he had seen the marpit, there is no mention in Ex. D-3 that he had run to the field of the appellants. In answer to question no. 10, he admitted that he had not disclosed the names of the assailants to any one prior to the police interrogation. He admitted that the head constable was questioning the persons about the occurrence, but he was not questioned. He did not disclose about his having seen the incident to the head-constable. In answer to question No. 36, he stated that he had not disclosed his having seen the incident to the head-constable because he was busy in preparation of the bullocks to take Jawaharsingh to Gotegaon. In answer to question No. 52 he had to admit that he had disclosed to none in the village. In view of the above facts, we are reluctant to treat him as an eye witness. ( 20. ) CHANDANSINGH (P. W. 4) is the person who lodged the first information report (Ex P-1 ). He stated that he was going for cutting grass and he heard the cries of Jawaharsingh when he reached the field of Jalamsingh. Then he rushed and saw the appellants Tulsiramand Gopalprasad catching hold of the feet of Jawaharsingh and the appellants Ganpatlal and Ratanlal assaulting him. Thereafter, Tulsiram and Gopalprasad left the feet of Jawaharsingh and also joined in the assault. In answer to question No. 4, he stated that he had no talk with Sahabsingh, Chanchalsingh, Roopsingh and Vijaysingh when they reached the place of incident. Thereafter, Tulsiram and Gopalprasad left the feet of Jawaharsingh and also joined in the assault. In answer to question No. 4, he stated that he had no talk with Sahabsingh, Chanchalsingh, Roopsingh and Vijaysingh when they reached the place of incident. In answer to question No. 8, he admitted that since he saw Roopsingh, Vijaysingh, Sahabsingh and Chanchalsingh came running to the place of marpit, he presumed that they must have seen the incident and, therefore, their names as eye-witnesses in the first information report were mentioned. He had to admit in answer to question No. 9 that these persons admitted that they had not seen the incident and then he realised that he made a wrong report of their being the eye-witnesses. This admission is material to show that the informant of the earliest version was introducing false facts and was describing persons as eye witnesses though, in fact, they had not witnessed the assault. In answer to question No. 20, he had to admit that there is an omission about his going to cut grass in Ex. P-1. ( 21. ) CHANDANSINGH (P. W. 4) mentioned in the first information report (Ex. P-1) that the four appellants were in hiding prior to the assault, but in answer to question No. 22, he had admitted that he had not seen the appellants in hiding and this was only his conjecture. There is again an important omission in Ex. P. 1 about the appellants Tulsiram and Gopal Prasad catching hold of the feet of Jawaharsingh. In answer to question No. 37, he had to admit that in Ex. P-1 he has not referred to Chanchalsinghs embracing his father and the father naming the four appellants as his assailants. In answer to question No. 41, he had to admit that Sahabsingh, Chanchalsingh and vijaysingh had not seen the incident. To question No. 56, he admitted that at the time of inquest, the head-constable had questioned about the eye-witnesses. Though he denied that the head-constable had recorded any statements, a fact which has already been established by the evidence discussed above. The evidence of Chandansingh is full of material omissions, suppression of truth, introduction of false recitals in the intitial report and hence his evidence would be utterly useless to connect the appellants with the assault on Jawaharsingh. ( 22. The evidence of Chandansingh is full of material omissions, suppression of truth, introduction of false recitals in the intitial report and hence his evidence would be utterly useless to connect the appellants with the assault on Jawaharsingh. ( 22. ) DHIRAJSINGH (P. W. 5) again comes as an eye-witness and testified to the oral dying declaration made by the deceased Jawaharsingh at the instance of Chanchalsingh (P. W. 2 ). In answer to question No. 10, he admitted that whatever he had seen he had told the head-constable but he did not record his statement. He admitted that except the head-constable and the Sub-Inspector, he did not disclose the occurrence to none. Then there are important omissions from Ex. D-5. In answer to question No. 28, he stated that Jawaharsingh of his own accord told him nothing. In answer to question No. 3 he admitted that he had disclosed nothing to Chanchalsingh and others. His evidence does not inspire confidence. ( 23. ) CHHIDAMI (P. W. 7) is the person who informed Sahabsingh and others at the house of Jawaharsingh. The distance, as narrated above on the basis of the spot map, shows that Chhidami had to cover sufficient distance to reach the house of Jawaharsingh and then the witnesses would take sufficient time to reach the place of incident which was more than half a mile. In between, the way had ups and downs and there could be no straight run. Thus sufficient time elapsed when Chhidami heard the shouts of Jawaharsingh, reached the house of Jawaharsingh and the witnesses returning to the place of incident. By this time, the assault would have been over and the prosecution witnesses could have seen nothing. He is an inimical witness, because he admits that the appellant Ganpatlals son had assaulted his son for no fault of his. His evidence does not help the prosecution. ( 24. ) THERE is another reason to doubt the oral dying declaration attributed to the deceased. The evidence of Dr. Agarwal (P. W. 10) shows that the injuries were situated over all parts of the body. Contusions were of sufficient dimensions. There were fractures and laceration of lung. There were injuries to lung and pleura because of fracture of 8 rib. ) THERE is another reason to doubt the oral dying declaration attributed to the deceased. The evidence of Dr. Agarwal (P. W. 10) shows that the injuries were situated over all parts of the body. Contusions were of sufficient dimensions. There were fractures and laceration of lung. There were injuries to lung and pleura because of fracture of 8 rib. With all these injuries on the person of the deceased, we are doubtful whether he would be in senses to narrate the incident to persons who must have arrived at least after an elapse of more than 15 minutes to the scene of incident. ( 25. ) THE above discussion brings out glaring draw backs in the prosecution version which are:- (i) Though a number of witnesses had not seen the incident, an attempt was made to introduce them as eye-witnesses in the first information report, Ex. P-1. (ii) Though the head-constable questioned the prosecution witnesses immediately after his arrival in the village with the case diary of the case, there is avowed attempt on the part of the prosecution to deny recording of the statements and an open attempt by the prosecution to suppress the earlier statements. (iii) There is clear admission of Chanchalsingh (P. W. 2) that the Sub inspector took down fresh statements on the ground that the statements recorded by the head-constable were not proper. (iv) There are also admissions at the earliest moment that the names of the assailants were not disclosed. We further find that there is no independent corroboration to the evidence of the prosecution witnesses and the prosecution witnesses being highly inimical as well as partisan, their evidence could not be accepted in view of the glaring defects as pointed out above. ( 26. ) WE will particularly refer to the statement of Head-Constable mahadeo Prasad (P. W. 12 ). He admitted that he had gone to the place of incident with the first information report and the case diary and knew who were the eye-witnesses. He admitted that he questioned the eye-witnesses one by one who narrated the incident. But it is surprising that the prosecution chose not to rely on the earliest versions of the prosecution witnesses. We doubt his statement that he had not recorded the statements of the witnesses because some of the prosecution witnesses admitted that such statements were recorded. He admitted that he questioned the eye-witnesses one by one who narrated the incident. But it is surprising that the prosecution chose not to rely on the earliest versions of the prosecution witnesses. We doubt his statement that he had not recorded the statements of the witnesses because some of the prosecution witnesses admitted that such statements were recorded. Suppression of the earlier statements is a serious flaw in the prosecution case and makes us reasonably suspect that the earlier statements were not in line with the prosecution case and were deliberately suppressed. ( 27. ) FROM the statement of the head-constable Mahadeo Prasad (P. W. 12), we find that the deceased Jawaharsingh was a history sheeter. Proceedings under sections 107 and 110 of the Code of Criminal Procedure were launched against him. He was indulging in marpit in the village. A person of such an unclean antecedent was bound to have numerous enemies and, therefore, possibility that some unknown enemies assaulted him could not be ruled out and suspicion fell on the appellants on whose report the prosecution was pending against the prosecution witnesses in the Court of Magistrate, First class, Narsimhapur. ( 28. ) NO doubt, the assault on the deceased Jawaharsingh was brutal, yet the prosecution has to establish its case on clear and cogent evidence. We have scrutinised the evidence in detail and find it totally deficient to connect the appellants with the assault on Jawaharsingh. The Sessions Judge ignored defects in the prosecution version and, therefore, reached a wrong conclusion. We are definitely of the view that the four appellants have been wrongly convicted under section 302 read with section 34 of the Penal Code. ( 29. ) FOR the reasons given above, the appeal succeeds and is allowed. The conviction of the four appellants Ganpatlal, Gopal Prasad, Tulsiram and ratanlal under section 302 read with section 34 of the Penal Code and the sentence of life imprisonment awarded to each of them are set aside. They are acquitted of the offence charged with. They be set at liberty forthwith unless required in any other case. Appeal allowed.