JUDGMENT S. C. Mathur, J. 1. THE present four appellants, viz., Jamal Ahmad, Sajjad Ahmad, Aziz Ahmad alias Lallu and Javed Ahmad Khan were tried along with Quresh Ahmad Khan,Razi Ahmad Khan and Babu Khan for the murder of Fakhrul Hasan alias Fakku son of Sri Izhar Alam alias Munna Miyan. The murder of Fakhrul Hasan alias Fakku was said to have been committed on 14-3-1976 at 3.30 PM. The father of Fakhrul Hasan, who lodged the first information report was alleged to have received the information of murder at about 5 PM at his Chakki and thereafter he was alleged to have lodged the first information report on that very day at 5.45 PM. The distance between the place of occurrence and PS Manikpur where the report was lodged was five miles. The report was alleged to have been scribed by Shah Parvez, the nephew of the informant. The informant claimed to have gone to the Police Station himself along with his nephew Israr Husain. 2. THE occurrence had taken place in village Oonchgaon which is also known as Mubarakpur within the circle of PS Manikpur, District Pratapgarh. The post-mortem on the body of the deceased was done by Dr. R. N. Katiyar (PW 9) on 15-3-1976 at 11.30 AM. The prosecution in support of its case examined 16 witnesses. On behalf of the defence Sri R. K. Sharma (DW 1) was produced. As indicated hereinbefore seven persons were accused before the learned court below. Out of these seven persons four were convicted by the learned Sessions Judge and the remaining three were acquitted. All the seven persons who were tried by the learned Sessions Judge belonged to the same family and their relationship with each other would be evident from the following pedigree;- Quresh Ahmad Khan Sajjad Ahmad Aziz Ahmad Razi Ahmad Babu Khan Khan Khan Khan Javed Ahmad Khan Sm. Naseem Jamal Ahmad All the persons shown in the; above pedigree except Smt. Naseem were accused before the learned Sessions; Judge. The appellant Sajjad and Jamal were convicted under Sections 302/149 IPC while appellant Aziz Ahmad alias; Lallu and appellant Javed Ahmad Khan were convicted under Section 302 IPC simplicitor. Naseem Jamal Ahmad All the persons shown in the; above pedigree except Smt. Naseem were accused before the learned Sessions; Judge. The appellant Sajjad and Jamal were convicted under Sections 302/149 IPC while appellant Aziz Ahmad alias; Lallu and appellant Javed Ahmad Khan were convicted under Section 302 IPC simplicitor. Apart from an appeal having been filed on behalf of the four convicted persons, the State has also filed an appeal in respect of the sentence; awarded against the persent appellants,, The State has not filed any appeal against the acquittal of Quresh Ahmad Khan, Razi Ahmad Khan and Babu Khan shown in the above pedigree. Appellant Sajjad Ahmad Khan was said to have been armed with lathi, while appellant Aziz Ahmad Khan was alleged to have been armed with a pistol. Javed Ahmad Khan was alleged to have been armed with a Gandasa like weapon and he was alleged to have severed the head of the deceased from the body. 3. THE occurrence which resulted in the death of Fakhrul Hasan was alleged to have been witnessed by two persons, viz., PW 1 Mirchoo and PW 2 Mohan. The post-mortem examination on the body of the deceased by Dr. R. N. Katiyar indicated the following external ante-mortem injuries:- 1. Third degree burn 1"- x 3/4" on the left flank 1-1/2" above iliac crest C blackening 1/2" around it. 2. Incised wound 1/2" x 1/4-' x muscle deep on the lower part of left side chest just below left nipple. 3. Gun shot wound of entry 1-1/10" x 1-1/10" x chest cavity deep on the front and middle of chest below nipple. 4. Gun shot wound of entry 2" x 1-1/2" on the front of right arm 3-1/2" below from the top of right shoulder gunshot wound of entry same 1" x 1" x chest cavity deep on in right side of chest frnt 4-1 /2" below top of right shoulder at She level of injury no. 4. 5. Gunshot 4/10" x 4/10" x bone deep on the front of chest 1/2" left to injury no. 3. 6. Incised wound 4-1 /2" x 5" x through whole of neck at the level left cirvical vertebrae at the base of neck. The neck and head is missing. 7. 4. 5. Gunshot 4/10" x 4/10" x bone deep on the front of chest 1/2" left to injury no. 3. 6. Incised wound 4-1 /2" x 5" x through whole of neck at the level left cirvical vertebrae at the base of neck. The neck and head is missing. 7. Incised wound 1-1/2" x 1" muscle deep in the left and upper part of chest with two abrasions 2"xl/2" on the left side of wound and abrasion 4" x 1/3" on the right side of the wound. 8. Incised wound 1-1/2'' x 3/4" x muscle deep on the front and upper part of left side chest near the middle with abrasion 1" x 2/10'- on the left side of the injury and abrasion 2-1/2" x 2/10" on the right side of the injury. 9. Gunshot wound of exit 3/10'' x 3/10" through and through corresponding to injury no. 3 with five pellets embedded just about the exit wound in an area of 2" x 2". 4. THUS according to the medical evidence the deceased had on his person gun-shot wounds and incised wounds. Around gunshot wounds blackening was present. The learned Sessions Judge believed the testimony of PWs 1 arid 2 whom he found to be neither partisan towards the complainants side nor inimical against the accused. He, therefore, found that conviction of the appellants could be based upon the independent testimony of PWs 1 and 2. He also believed the testimony of PW 4 Musa Khan who was alleged to have been the person who last saw the deceased in the company of appellant Jamal Ahmad. The learned Sessions Judge also believed the motive for the crime although he observed that in view of the presence of eye-witnesses motive was immaterial. The above judgment of the learned Sessions Judge was challenged by the appellant's learned counsel Sri S. N. Mulla on a number of grounds. Sri Mulla, however, did not dispute following facts before us : (1) That there was love affair between the deceased and Nasim, daughter of appellant Aziz Ahmad Khan ; (2) That Nasim instead of being married to the deceased was married to another person of district Fatehpur. (3) That Nasim, daughter of appellant Aziz Ahmad Khan disappeared after the above marriage. (4) That Fakhrul Hasan alias Fakku was murdered at the place and at the time alleged by the prosecution. (3) That Nasim, daughter of appellant Aziz Ahmad Khan disappeared after the above marriage. (4) That Fakhrul Hasan alias Fakku was murdered at the place and at the time alleged by the prosecution. His contention, however, was that the appellants had been falsely implicated in the case on mere suspicion arising from the fact that the love affair between Fakhrul Hasan and Nasim was not liked by the appellants and other members of their family. His suggestion was that in all likelihood the murder of Fakhrul Hasan was not witnessed by any one and when his headless body was discovered the present case was concocted on the basis of the suspicion hereinbefore referred to. He urged that the alleged eye-witnesses Mirchu and Mohan (PWs 1 and 2) although apparently neither inimical against the appellants nor partisan towards the complainant were actually got-up witnesses and had been procured under the influence of Sri Niaz Hasan whom the appellants and their family members had been opposing at elections and who exercised considerable influence in the area. The informant Shah Azbar Alam (PW 8) was also alleged to be wielding considerable influence in the area as he was Chairman of the Town Area Committee. Sri Mulla contended that even though it may not be possible for the appellants to point out material contradictions in the depositions of the alleged eye-witnesses there were inherent infirmities in the case which rendered the entire prosecution case incredible. His first attack was against the first information report itself. 5. PLACING the first information report (Ext. Ka-15) before us he urged that the story narrated therein is so improbable that the same cannot be accepted. In order to appreciate the argument it will be useful to give the substance of the story as contained in the report. The said story runs thus.- The informant had a flour mill near the house of appellant Aziz Ahmad Khan. Informant's son Fakhrul Hasan used to look after the flour mill and for major part of the day he used to remain there. A love affair had developed between Fakhrul Hasan" son of the informant and Nasim, daughter of appellant Aziz Ahmad Khan. This love affair was resented by Aziz Ahmad Khan, the father of Nasim and by other members of his family. A love affair had developed between Fakhrul Hasan" son of the informant and Nasim, daughter of appellant Aziz Ahmad Khan. This love affair was resented by Aziz Ahmad Khan, the father of Nasim and by other members of his family. On coming to know of this love affair Nasim's parents married her to a boy of district Fatehpur about 5-6 months ago. About 25 days ago Nasim left her parents' house for the house of her in-laws in the company of her husband for the third time after marriage, that is, it was her third Bidai. Dodging her husband she disappeared from Fatehpur Railway Station. Nasim's husband informed his in-laws about the disappearance of Nasim. The love affair between Nasim and Fakhrul Hasan was already known to appellant Aziz Ahmad Khan and other members of his family who also knew that Nasim did not want to go with her husband. On account of this appellant Aziz Ahmad and his family members started bearing ill-will against Fakhrul Hasan who, it was claimed, was not aware of the facts that he was being suspected for the disappearance of Nasim. On the day of occurrence at about 1 o'clock in the day .when the informant was present at the door of his house, appellant Jamal son of appellant Aziz came to the informant's house and had some talk with Fakhrul Hasan and then took away Fakhrul Hasan along with him. At Brahmanpur at the shop of Basant Lal Nai Panwala, Jamal had some secret talk (Gupchup baat) with Fakhrul Hasan in the presence of Jamshed Ali Khan, Moosa Khan and others. From there at about 2 o'clock Jamal Ahmad went towards east with Fakhrul Hasan deceased on the same bicycle. At Brahmanpur at the shop of Basant Lal Nai Panwala, Jamal had some secret talk (Gupchup baat) with Fakhrul Hasan in the presence of Jamshed Ali Khan, Moosa Khan and others. From there at about 2 o'clock Jamal Ahmad went towards east with Fakhrul Hasan deceased on the same bicycle. Thereafter at about 5 o'clock in the same evening Mirchu resident of Oonchga -on came to the informant and told him that he and Mohan Khatik were present in his plot when at 3.30 Jamal and Fakhrul Hasan came on one and the same bicycle and as they reached the north-western corner of the grove of Chiggan Khan, appellant Aziz Ahmad alias Lallu armed with pistol, appellant Javed son of Sajjad Khan armed with Gandasa like weapon Sajjad Khan son of Quresh Khan and two or three unknown persons who had lathis with them apprehended Fakhrul Hasan and appellant Aziz Ahmad fired a shot from his pistol which struck Fakhrul Hasan who fell on the ground injured. Appellant Jamal and Sajjad and 2-3 unknown persons held Fakhrul Hasan and appellant Javed started cutting the neck of Fakhrul Hasan with Gandasa like weapon, when Mirchu and Mohan started running towards the place of occurrence raising alarm. Hearing the alarm certain other persons passing that way (Rahis) also started running in the same direction. Seeing these persons the assailants ran away towards the east with the severed head of Fakhrul Hasan. Mirchu and Mohan claimed that they would be able to recognize the 2-3 assailants whose names and addresses were not known. The narration hereinbefore given was claimed to have been given by Mirchu (PW 1). On receiving this narration from PW 1 Mirchu, the informant, started for the place of occurrence, weeping and crying and making enquiries. He reached the place of occurrence and identified the body as that of his son Fakhrul Hasan after seeing the clothes on the body of the deceased and the body itself. 6. SRI Mulla urged that in view of the strained relations between the two families it was impossible to believe that the deceased would accompany appellant Jamal and that too without 'any protest even from the informant who saw the two talking and later going together. 6. SRI Mulla urged that in view of the strained relations between the two families it was impossible to believe that the deceased would accompany appellant Jamal and that too without 'any protest even from the informant who saw the two talking and later going together. He pointed out that the informant was conscious of this flaw even while making the report and therefore he was careful to add that the deceased was not aware of the fact that he was being suspected in connection with the disappearance of Nasim. In this connection he drew our attention to the deposition of the informant (PW 8) wherein he stated that about 17-18 days before the date of occurrence appellant Aziz and his father Quresh Ahmad Khan had come to the informant and sought his good offices in tracing out Nasim through Fakhrul Hasan who, they stated, had either himself or through others, caused the disappearance of Nasim. This witness cms that he did ask Fakhrul Hasan whether he had any hand in the disappearance of Nasim to which he replied in the negative. This witness further claimed that although he asked Fakhrul Hasan about the matter be did not inform him that his involvement was being suspected by the appellants and the members of their family. The learned counsel argued that if the informant had asked Fakhrul Hasan about his involvement in the matter in dispute it is impossible to believe that he would not indicate to Fakhrul Hasan the reason for making that enquiry, namely suspicion of appellant Aziz Ahmad and his family members and once it was found that Fakhrul Hasan had knowledge of the suspicion there would be no occasion for him to go with Jamal and if the story of going with appellant Jamal is proved to be false, the entire prosecution structure will collapse because it is the foundation for the prosecution case. In the same strain the learned counsel urged that even if Fakhrul Hasan did not have the knowledge of the suspicion against him, his father (PW 2) did have that knowledge and being in possession of that knowledge he would not have allowed his son to go with Jamal specially when his cm was that while going away Aziz Ahmad's father Quresh Ahmad Khan had given the threat that it would be seen (dekha jayga). The learned Government Advocate controverted the argument by pointing out that Jamal enjoyed some sort of confidence with the deceased and his father and therefore there was no occasion to suspect when Fakhrul Hasan went with Jamal. In support of his argument he drew our attention to the deposition of PW 8 wherein he stated that appellant Jamal always used to come to his house. He also drew our attention to the fact that this statement in the deposition of PW 8 was not challenged through cross-examination. Mr. Mulla contended that the statement in the deposition of PW 8 relied upon by the learned Government Advocate did not indicate that Jamal continued to visit his house even after the disappearance of Nasim and even after her parents etc. had started suspecting Fakhrul Hasan for her disappearance. He also urged that even if the said statement be taken as conveying the fact that appellant Jamal continued to visit PW 8's house even after the said incident and even after Quresh Ahmad had indicated his suspicion regarding (sic) to believe that PW 8 would not make even an enquiry from his son when he saw him going with appellant Jamal. He further urged that even if this court were of the view that the statement relied upon by the learned Government Advocate required cross- examination, we should ignore the lapse and reject the prosecution story as it was inherently improbable. Sri Mulla's argument was that the powers of a court exercising criminal jurisdiction were wide than the power exercised by a court of civil jurisdiction and the former court could refuse to rely upon a statement if it appeared to be inherently incorrect or improbable or doubtful even though the same had not been challenged through cross-examination. 7. WE have given our anxious consideration to the above argument. Although the rules of evidence are in general the same in civil and criminal cases, the probative effects of evidence in the two categories of cases are not always the same. A fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case. While a civil case may be proved by a mere preponderance of evidence, in a criminal case the prosecution must prove the charge beyond reasonable doubt. A fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case. While a civil case may be proved by a mere preponderance of evidence, in a criminal case the prosecution must prove the charge beyond reasonable doubt. A conviction cannot be recorded even if the prosecution story considered as a whole "may be true" until It is found that It "must be true". In the case of Sarwan Singh v. State of Punjab, AIR 1957 SC 637 , their Lordships of the Supreme Court observed as follows at page 645 of the report: "It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against both the appellants. Mr. Gopal Singh contended that considered as a whole, the prosecution story may be true, but between "may be true" and "must be true" there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence." In paragraph 9 of the above judgment occurring at page 642 column 2 of the report their lordships further observed thus: ".........suspicion, however strong, cannot take the place of proof." 8. CONSIDERING the facts of the present case in the background of the above legal position we find that the statement relied upon by the learned Government Advocate is to this effect : "Jamal Ahmad Mulzim mere Yahan barabar aata jata tha." PW.8 had his flour mill opposite the house of the appellants. Both PW 8 and the deceased Fakhrul Hasan used to sit at this flour mill. Naturally both the families were acquainted with each other. In such a situation it can reasonably be inferred that appellant Jamal Ahmad used to visit the house of PW 8. But the question is up to what stage these visits continued. Did they continue even after Nasim had disappeared and the members of her family had started suspecting Fakhrul Hasan's hand in her disappearance. At the time of disappearance of Nasim, Jamal Ahmad appellant is said to have been aged about 15 or 16 years. He was not such a small child as not to know what was happening in the family and who were the persons who were being suspected in connection with those happenings. At the time of disappearance of Nasim, Jamal Ahmad appellant is said to have been aged about 15 or 16 years. He was not such a small child as not to know what was happening in the family and who were the persons who were being suspected in connection with those happenings. Once he knew that Fakhrul Hasan was being suspected in connection with the disappearance of his sister, he himself would not go to the house of PW 8 even though he might have gone there earlier. In this view of the matter we are not prepared to accept the prosecution case that appellant Jamal Ahmad came to the house of PW 8 on the day of occurrence and took deceased Fakhrul Hasan along with him to the place of occurrence. We may also observe that we consider it highly Improbable that PW 8 would not even ask Fakhrul Hasan as to where he was going when he saw him going along with Jamal Ahmad. The next inherent infirmity pointed out by the learned counsel was that the informant could not have been weeping and crying at the time in such a manner as to attract the attention of Moosa Khan (PW 4) and the theory of weeping and crying was introduced so as to give credibility to the testimony of PW 8 who has claimed that he started for the place of occurrence after having been Informed about it by Mirchu, on a scooter driven by Israr Ahmad. A person who has received Information about the murder of his son in a most brutal manner would straightaway proceed to the scene of occurrence and we are not impressed by the prosecution Case that he would stop the scooter and talk to Moosa Khan in order to Inform him about the occurrence. We are also not impressed about the presence of Moosa Khan at the place where he is alleged to have met PW 8. We find force in the argument of the learned counsel for the appellants that Moosa Khan was introduced in order to re-inforce the prosecution story. 9. IT was then urged that if the story contained in the first information report was correct it was impossible for the said report to be lodged at 5.45 PM when it was claimed to have been lodged. 9. IT was then urged that if the story contained in the first information report was correct it was impossible for the said report to be lodged at 5.45 PM when it was claimed to have been lodged. It was urged by the learned counsel for the appellants that within the short space of 45 minutes it was impossible for the informant to have done all the acts which he claimed he did before lodging the report. Therefore it was pressed that either the informant did not do the acts claimed by him to have been done before lodging the first information report or the first information report was ante timed. We will presently examine this aspect of the matter, 10. THE first information repeat (Ex. Ka-15) records the time of its lodging as 17.45, i. e. 5.45 PM. According to the story given by the informant in the first information report, Mirchu (PW 1) came to him at about 5 P. M. PW 1 described the occurrence to the informant in detail. Thereafter the informant started for the place of occurrence which was at a distance of 4-11/2 miles from the flour mill from where he started. In between he met Moosa Khan (PW 4) and narrated the occurrence to him. After narrating the occurrance to Musa Khan he again startled for the place of occurrence and reached there without further stoppage. After reaching the spot he examined the body of the deceased and the clothes which he was wearing. He heard the same narration of the occurrence from Mohan (PW 2). His statement is - "Usne (Mohan ne) bhi mujhe wah sab haal bataya jo mujhe Mirchu ne bataya tha' (italicised by me). His nephew Pravez Alam reached the spot shortly after he himself reached there. The informant (PW 8) dictated the written report to Parvez Alam. This dictation, according to him, took about 15.20 minutes. Thereafter the written report was read over to him. Them he signed it. Thereafter he left for PS Manikpur which was at a distance of 5 miles from the place of occurrence. It was pointed out by the learned counsel that according to PW 1 the distance between the place of occurrence and the flour mill of the informant (PW 8) was 4-1/2 miles. Them he signed it. Thereafter he left for PS Manikpur which was at a distance of 5 miles from the place of occurrence. It was pointed out by the learned counsel that according to PW 1 the distance between the place of occurrence and the flour mill of the informant (PW 8) was 4-1/2 miles. It was in the deposition of PW 1 that he started from the places of occurrence after 4-5 minutes of the murder having taken place. According to him the murder had taken place at 3.30 PM. He, therefore, started for the flour mill of the father of the deceased at 3.35 PM. There is some discrepansy between the depositions of PW 1 and PW 8 regarding the time of PW 1 reaching the flour mill of PW 8 at 4 or 4.30 PM, while according to PW 8, PW 1 reached his place at 5 PM. As we would presently indicate the time stated by PW 8 is preferable to the time stated by PW 1. At one place PW 1 would be very definite about the time given by him and at another place he would prefer to be flexible. In his examination-in-chief PW 1 stated that he returned to the place of occurrence at 4 or 4.30 PM. Then he changed this statement to 4.55 or 5 PM. In respect of both these timings there was flexibility inasmuch as he asserted the time as 4 or 4.30 and 4.55 or 5 PM, while mentioning the time at which he conveyed information to PW 8, PW 1 stated that the said information was conveyed at 4.30 PM and he was not prepared to accept any flexibility with regard to this time. He was definite that it was 4-30 PM and not 5 PM. He went to the extent of denying his statement to the Investigating Officer wherein he had stated that he had gone to PW 8. at about 5 PM. It is further to be noticed that in no case PW 1 could have reached the flour mill of PW 8 at 4 PM when he had started from the place of occurrence at 3.35 PM inasmuch as the distance to be covered was about 4-1/2 miles. at about 5 PM. It is further to be noticed that in no case PW 1 could have reached the flour mill of PW 8 at 4 PM when he had started from the place of occurrence at 3.35 PM inasmuch as the distance to be covered was about 4-1/2 miles. From the evidence on record it does appear that it should take at least one hour to cover the distance between the place of occurrence and the flour mill of PW 8. PW 8 would thus take about one hour to reach the place of occurrence from his flour mill. If we accept the deposition of PW 8 that PW 1 came to his place at 5 PM, PW 8 would reach the place of occurrence at 6 PM, that is, 15 minutes after the time at which the first information report is said to have been lodged at PS Manikpur. If we accept the version of PW 1 that he reached the flour mill of PW 8 at 4.36 PM, PW 8 would reach the place of occurrence at 5.30 PM. Thus he would be left with only 15 minutes to lodge the report at 5.45 PM at the Police Station which in view of the acts done by him between the place of departure and place of reaching would be an impossible act. PW 1 had stated in his deposition that he had covered the distance on foot. The assessment which we have herein made is based on covering of distance on foot. Sri Mulla urged that realising the above snag in the prosecution case, in oral evidence before the Sessions Judge, an improvement was made and it was alleged that PW 8 had covered the distance from his flour mill to the place of occurrence and from the place of occurrence to the Police Station on a scooter driven by Israr Husain. Sri Mulla's argument was that in the first information report the use of scooter had not been mentioned by PW 8. He also did not mention the use of scooter in his statement before the Investigating Officer and it was before the learned Sessions Judge that the use of scooter was alleged for the first time. Sri Mulla's argument was that in the first information report the use of scooter had not been mentioned by PW 8. He also did not mention the use of scooter in his statement before the Investigating Officer and it was before the learned Sessions Judge that the use of scooter was alleged for the first time. He pointed out that the use of scooter had not been alleged by PWs 1 and 2 also in their previous statements and suddenly PW 1, PW 2 and PW 8 all came out with their statements asserting the use of scooter in examination-in-chief itself. Sri Mulla urged that the absence of the use of scooter in the earlier statements and its introduction for the first time in oral evidence before the learned Sessions Judge indicated that no scooter had in fact been used and scooter was introduced only to explain the lodging of the first information report at 5.45 PM which otherwise would have been impossible. 11. THE above argument of Sri Mulla was countered by the learned Government Advocate who urged that no opportunity was afforded to the prosecution witnesses to explain omission from their earlier statements with regard to the use of scooter by PW 8, and therefore it was not open to Sri Mulla to urge that scooter had not, in fact, been used. It is no doubt true that a specific question enquiring from the prosecution witnesses as to why they had not mentioned the fact of scooter having been used in their earlier statements, was not put to them, yet it would be seen from the cross-examination that the use of scooter was challenged on behalf of the appellants. A specific question was put to PW 8 that the use of scooter had been introduced in order to explain the discrepancy with regard to the timings. He denied the suggestion. The suggestions made in cross-examination form part of the evidence on record. Those suggestions can be taken into consideration while determining whether the reply given was believable or not. In our opinion the use of scooter is extremely doubtful. We are constrained to hold so on account of the fact that the first information report was a detailed one and yet this important detail of covering the distance on scooter was not contained therein. In our opinion the use of scooter is extremely doubtful. We are constrained to hold so on account of the fact that the first information report was a detailed one and yet this important detail of covering the distance on scooter was not contained therein. Once the use of scooter becomes doubtful, the lodging of the first information report at 5-45 PM also becomes doubtful. In entertaining this doubt we have also been influenced by the fact that the statements made by PW 1 with regard to timings were rather shaky. In arriving at this finding we leave also taken into account the deposition of PW 2 who stated that PW 8 had come to the place of occurrence at 5 PM while according to PW 8, PW 1 came to his flour mill at 5 PM. If PW 1 had come to the flour mill of PW 8 at 5 PM it was impossible for PW 8 to reach the place of occurrence at 5 PM after doing all the acts which it was alleged by him he did before teaching the place of occurrence. 12. AFTER hurling the above attack on the first information report Sri Mulla's next target of attack was investigation. [His contention was that the investigation in this case was also not free from taint and at any rate there was considerable doubt with regard to its fairness. The first taint pointed out by the learned counsel was with regard to the ante timing of the first information report. His argument was that once it was held that the first information report was not lodged at 5.45 PM at which it was stated to have been lodged, naturally there was ante timing of the report. We have expressed our doubt about the lodging of the first information report at 5.45 PM and, therefore, we will have to accept the first attack of Sri Mulla against the investigation. Sri Mulla next urged that the inquest report (Ex. Ka-24) contained several interpolations which indicated that the acts alleged to have been done at the time indicated in the inquest report were not actually done at that time and, therefore, the inquest; report was not a reliable document. He pointed out that on the first page of Ex Ka-24 two timings are recorded, viza 17.15 PM and 18.30 PM. Ka-24) contained several interpolations which indicated that the acts alleged to have been done at the time indicated in the inquest report were not actually done at that time and, therefore, the inquest; report was not a reliable document. He pointed out that on the first page of Ex Ka-24 two timings are recorded, viza 17.15 PM and 18.30 PM. He urged that the abbreviation 'PM' was not used when the hours were mentioned in succession after 12 noon and the abbreviations were used only when the figures were repeated after 12 noon as 1, 2, 3 and so on. His argument was that original figure in place of 17.45 was 7.45 PM and this was changed to 17.45 by adding 1 before the figure 7. Similarly, he argued that the original figure below 17.45 PM was 10.30 PM and this was altered to 18.30 PM by changing 0' into 8'. He them indicated that on the reverse side of this page Section 302 was in alignment with the line, while the figures 147, 148 and 149 were not in alignment with the line. It was also pointed out that Section 149 would be written after the substantive offence. The substantive offence in this case being one punishable under Section 302, the figure 149 would have found place after the figure 302 and therefore introduction of the figures 147, 148 and 149 above the figure 302 is a subsequent interpolation. He also invited our attention to page 4 of this document and pointed out that at several places the ink was different from the one used elsewhere. We have examined this document carefully and the suggestions made by the learned counsel are not entirely without force. The learned Government Advocate however urged that the alleged interpolations were not put to the Investigating Officer when he was in the witness-box and in the absence of opportunity having been afforded to the Investigating Officer it cannot be held that the interpolations were subsequently made in order to help the prosecution case. We are in agreement with the learned Government Advocate that unless an opportunity had been afforded to the author of the document, it cannot be held definitely that the interpolations were subsequently made. However, considered in the background of our finding in respect of the ante timing of the first information report the corrections made in Ex. We are in agreement with the learned Government Advocate that unless an opportunity had been afforded to the author of the document, it cannot be held definitely that the interpolations were subsequently made. However, considered in the background of our finding in respect of the ante timing of the first information report the corrections made in Ex. Ka-24 do raise doubt in our mind that they were made subsequently. However, we would refrain from recording a positive finding on these interpolations because of the reason pointed by the learned Government Advocate and we would not take the matter beyond the realm of doubt. Apart from the interpolations the investigation will still remain tainted in view of our finding with regard to the ante timing of the first information report. Another doubtful feature in the investigation is the delay in recording the statements of the eye-witnesses and the informant by the Investigating Officer. The informant (PW 8) had gone to the Police Station to lodge the report. According to the investigating Officer (PW 16) the report was lodged in his presence, still he did not record the statement of the informant at the Police Station itself. It is further in the evidence of PW 8 that he had met the Investigating Officer at the place of occurrence. The Investigating Officer, according to PW 8, had reached the place of occurrence earlier than himself and when PW 8 reached the place of occurrence after lodging the report the Investigating Officer was already at the place of occurrence. Here also the Investigating Officer did not record the statement of PW 8. It is also in the evidence of PW 8 that the Investigating Officer met him early morning next day. Even at that time his statement was not recorded and it was actually recorded at 7.30 AM on 15-3-1976. Thus before actually recording the statement of PW 8, the Investigating Officer met him on no less than three occasions but on none of these three occasions he considered it desirable or necessary to record his statement. Similar is the position with regard to the recording of the statements of PWs 1 and 2, namely Mirchu and Mohan, the alleged eye-witnesses. Similar is the position with regard to the recording of the statements of PWs 1 and 2, namely Mirchu and Mohan, the alleged eye-witnesses. Although the names of these persons found place in the first information report, the Investigating Officer did not record the statements of these two witnesses on the date of occurrence but recorded their statements the next day at about 10 AM. It was urged by Sri Mulla that this non- recording of statements was sought to be explained by introducing the fact in the depositions of PWs 1 and 2 that they left the place of occurrence before the arrival of the Investigating Officer. It was, however, pointed, out by Sri Mulla that these two witnesses were not residing very far off from the place of occurrence and, therefore, even if these two witnesses had left the place of occurrence before the arrival of the investigating officer, the Investigating Officer could have gone to their residences and recorded their statements. In this connection he pointed out that PW 1 Mirchu, according to his own statement, resided at a distance of less than one furlong from the place of occurrence. In this view of the matter there was absolutely no difficulty in Investigating Officer going to his house and recording his statement there, even If we believe the statement of PW 1 that he left the place of occurence before the Investigating Officer actually reached the spot. The learned Government Advocate pointed out that the first anxiety of the Investigating Officer was to trace out the head of the deceased which had been severed from the body and which was not found at the spot. His argument was that the Investigating Officer was not unjustified in postponing recording of the statements till after the head had been traced out. We are not impressed by the argument of the learned Government Advocate because the recording of the statements of eye-witnesses and the informant would not have taken much time. At any rate the problem of tracing the head arose only after the Investigating Officer had reached the place of occurrence and not at the Police Station itself. At the Police Station itself he had come to know that the murder had taken place at about 3.30 PM. At any rate the problem of tracing the head arose only after the Investigating Officer had reached the place of occurrence and not at the Police Station itself. At the Police Station itself he had come to know that the murder had taken place at about 3.30 PM. The informant was right in front of him and there was no difficulty in recording at least the statement of the informant (PW 8). In this view of the matter the suggestion of Sri Mulla that before recording the statements of the witnesses the anxiety was to chalk out the line which was to be adopted, is not entirely without force and the delay in recording the statements does create a doubt in our mind in that direction. 13. THE further argument of Sri Mulla was that implicit reliance could mot be placed on the testimony of PWs 1 and 2 inasmuch as their depositions indicated that they were prepared to support the prosecution case to any extent. Referring to the statement of PW 1 he pointed out that this witness stated that the first fire did not make any sound. The learned counsel pointed out that if the first fire did not make any sound it was not explainable how he came to know about the first firing at all inasmuch as he was, at the time of occurrence, at a place quite remote from the place of occurrence and he was attracted to the place of occurrence only by the sound of shots which allegedly were fired from the pistol held by appellant Aziz Ahmad. Sri Mulla urged that he made this statement in order to bring bis statement in conformity with the prosecution case. Another instance of the desire to support the prosecution case on the part of this witness was pointed out by inviting our attention to that portion of his deposition where he stated that before running away Lallu accused had put his hand in the pocket of the deceased. This statement, according to Mr. Mulla, was made in order to support the prosecution case regarding recovery of cartridge from the person of the deceased. A statement to the same effect was made by PW 2 also. This statement, according to Mr. Mulla, was made in order to support the prosecution case regarding recovery of cartridge from the person of the deceased. A statement to the same effect was made by PW 2 also. According to the learned counsel this theory of putting hand in the pocket of the deceased was set up to support the recovery of cartridge from the person of the deceased. According to Sri Mulla the recovery of cartridge indicated that in all likelihood the deceased was carrying fire-arm with him which, at the time he was murdered, was taken away by his assailants but the prosecution introduced the theory of planting of cartridge by the present appellants in the pocket of the deceased. 14. HE also urged that the disappearance of both the alleged eye-witnesses from the scene of occurrence before the arrival of the Investigating Officer is also significant. These witnesses continued to remain at the place right from 3.30 till 5.30 PM but according to their depositions they left immediately after PW 8 left the place of occurrence for the Police Station in order to lodge the report. Both these witnesses had known PW 8 from before and, therefore, according to the learned counsel this conduct on their part was unnatural specially when it was viewed in the background that PW 1 had taken pains to travel a distance of 4-1/2 miles on foot in order to convey the information to PW 8. According to the learned counsel this disappearance from the place of occurrence was introduced to explain the non-recording of their statements by the Investigating Officer at the time he reached the place of occurrence. He also invited our attention to those portions of his depositions where he resiled from his earlier statements and pleaded that he could not say how earlier statements had been recorded. The same position exists with regard to the deposition of PW 2 also. This witness also cms to have left the place of occurrence shortly after PW 8 left the spot for the Police Station in order to lodge the report. According to the deposition of PW 1, PW 2 is his partner in fruit business. Thus even if PW 2 is not either partisan to the complainant's side or inimical against the appellants, he was friendly to PW 1 and may be interested in supporting the case which PW 1 supported. According to the deposition of PW 1, PW 2 is his partner in fruit business. Thus even if PW 2 is not either partisan to the complainant's side or inimical against the appellants, he was friendly to PW 1 and may be interested in supporting the case which PW 1 supported. Sri Mulla further urged that it was a very strange circumstance alleged on behalf of the prosecution that crops in all other fields in the vicinity of the place where the murder is alleged to have taken place, had been harvested and removed from the fields to the Khalihan and the only field from which the crop had not been removed was the field of Mirchu (PW 1). Sri Mulla urged that the harvesting of the crops from all other fields was alleged on behalf of the prosecution in order to make the prosecution story believable that the arrival of the deceased on the bicycle with appellant Jamal had been witnessed by PWs 1 and 2 and they also witnessed the actual assault on the deceased. Sri Mulla's argument was that the occurrence had taken place on 14-3- 76 and the festival of Holi in that year was on 16-3-1976. According to the learned counsel it was impossible to believe that the entire crop had been harvested before the festival of Holi in that year inasmuch as the Arhar crop is the last one to be harvested and it could have been harvested only after the Holi festival. In support of this argument the learned counsel produced before us a book written by a Professor of the Pant Nagar Agriculture University. The author of the book was not put in the witness-box and the prosecution was not afforded opportunity to cross-examine him on the statements made by him in the said book and therefore we are not in a position to place reliance upon the said book. The said book does not also appear to be the work of a recognized authority. We are, however, of the view that it does seem strange that Mirchu's field was the only one in which crop had remained and that crops from all other fields had been harvested and removed. Whatever may be the fact this strange circumstance creates doubt in our mind regarding authenticity of the prosecution case. 15. We are, however, of the view that it does seem strange that Mirchu's field was the only one in which crop had remained and that crops from all other fields had been harvested and removed. Whatever may be the fact this strange circumstance creates doubt in our mind regarding authenticity of the prosecution case. 15. FROM the above discussion the position that emerges out is this: The prosecution case that even after development of strained relations between the families of the deceased and the appellant, Jamal Ahmad went to the house of the deceased is unbelievable. It is further unbelievable that even after acquiring knowledge that Quresh and members of his family were suspecting the hand of deceased Fakhrul Hasan in the disappearance of Nasim, PW 8, the father of the deceased would allow Fakhrul Hasan to accompany Jamal Ahmad without even PW 8 asking him as to where he was going. Lodging of the first information report at the time it is alleged to have been lodged is extremely doubtful. Fairness of the investigation is not beyond doubt. Implicit reliance cannot be placed upon the depositions of PWs 1 and 2. Meeting of Musa Khan (PW 4) with PW 8 does not inspire confidence. On these findings it is not possible to convict a person so as to deprive him either of his life or of his liberty. We are, therefore, of the opinion that the appellants have to be acquitted of the charges levelled against them. 16. WE accordingly allow the appeal and set aside the conviction recorded by (he learned court below and also set aside the sentences imposed by the learned court below against the appellants. The appellants are acquitted of the charges levelled against them. They are on bail. They need not surrender. Their bail bonds are cancelled and the sureties are discharged. We now come to the appeal preferred on behalf of the State against the sentence imposed by the learned court below. In this appeal, as indicated hereinabove, the prayer is that the sentence awarded by the learned court below be enhanced to sentence of death. The learned court below imposed the sentence of life imprisonment for the offence punishable under Section 302 of the Indian Penal Code. In this appeal, as indicated hereinabove, the prayer is that the sentence awarded by the learned court below be enhanced to sentence of death. The learned court below imposed the sentence of life imprisonment for the offence punishable under Section 302 of the Indian Penal Code. The argument of the learned counsel was that the crime was a premeditated one and had been committed in a most brutal manner inasmuch as even the head of the deceased had been chopped off and, therefore, the extreme penalty of death should be awarded against the appellants. The learned Government Advocate pointed out that there were no extenuating circumstances which could call for a lesser punishment. In view of the fact that we have acquitted the accused persons of the charges levelled against them the question of allowing State Appeal does not arise. In fact it becomes infructuous. However since our judgment may be the subject matter of an appeal before their Lordships of the Supreme Court, we propose to make our observations with regard to the merits of the State Appeal also. 17. PRIOR to the amendment of the Code of Criminal Procedure, 1898 by the Code of Criminal Procedure (Amendment) Act, 1955 (Act No. XXVI of 1955), the Court imposing sentence in a case punishable with death or life imprisonment was required to give reasons for not awarding the sentence of death. Thus under the Code of 1898 as it stood prior to the said amendment death sentence was the rule and life imprisonment was the exception. After the said amendment it was not necessary for the Court to record reasons for not awarding the death sentence and instead awarding the sentence oil life imprisonment. The entire concept has undergone a complete change with the enforcement of the Code of Criminal Procedure, 1973 (Act No. II of 1974). Sub-Section (3) of Section 354 of the Act of 1973 provides as follows: "(3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded and in the case of sentence of death, the special reasons for such sentence." 18. UNDER the Code of 1973, thus, sentence of imprisonment is the rule and death sentence is the exception. UNDER the Code of 1973, thus, sentence of imprisonment is the rule and death sentence is the exception. The learned court below has imposed the lesser punishment of life imprisonment on primarily three considerations; firstly, that the deceased was also to blame inasmuch as he had illicit connection with Nasim, daughter of appellant Aziz Ahmad ; secondly, the appellants were not previous convicts, and thirdly that the appellants were not hardened criminals. In our opinion the last two factors were not irrelevant for imposing the lesser penalty of life imprisonment instead of death. Apart from the above we are of the view that the imposition of sentence is a matter of discretion with the trial court. In taking this view we are fortified by a decision rendered by their Lordships of the Supreme Court in the case of Dharamdas Hukamatra Dorwani v. State of Bombay, AIR 1960 SC 734 , para 14. Once the trial court has exercised its discretion the appellate court would not be justified in interfering with the exercise of that discretion unless exceptional grounds exist. See AIR 1958 Allahabad 746-757- para 32-Satya Vir v. State). In this view of the matter an appellate court would be justified in interfering with the exercise of discretion by the trial court only when the exercise of discretion is arbitrary and is based on irrelevant considerations. 19. IN the case of Mahmud Ali Khan v. Emperor, AIR 1933 Allahabad 438 first conviction was considered as a relevant ground for imposing the lesser punishment. The fact that an accused person is not generally of bad character is also not an irrelevant ground for imposing lesser punishment. We are of the view that the punishment should generally be on the lower side. Of course it should not be so low as to encourage commission of crime. 20. THE twin objects of punishment are to prevent a person who has committed a crime from repeating it and to prevent others from committing similar crimes. The sentence passed on an offender must be the least that will achieve both these objects. Applying these principles to the facts of the present case on the assumption that the appellants committed the murder of Fakhrul Hasan, we find that the appellants were not involved in any crime previously even of a minor nature. The sentence passed on an offender must be the least that will achieve both these objects. Applying these principles to the facts of the present case on the assumption that the appellants committed the murder of Fakhrul Hasan, we find that the appellants were not involved in any crime previously even of a minor nature. Their respectability was hurt when; a girl of their family got involved in a love affair which became known to the entire village. They tried to rehabilitate the lost reputation by marrying that girl to another boy. Even this did not have the desired result and rather brought the situation to a worse pass. The girl disappeared which affected the reputation of one more family, namely the family in which she had been married. The mental state of the members of such a family can be well imagined. We have no reason to believe that the lesser punishment of life imprisonment will encourage the appellants to commit further offences including murder. Thus the first object of awarding punishment would be amply met by awarding the lesser sentence of life imprisonment. So far as the other object is concerned we are of the view that the award of lesser sentence of life imprisonment will not encourage others to commit murder inasmuch as the award of actual punishment is in the discretion of the trial court and merely because death sentence has not been awarded in a particular case, will not deprive the Court of its jurisdiction to pass that sentence in another case. Thus neither of the two objects would be defeated by the award of lesser sentence. The learned Government Advocate placed reliance upon three decisions rendered by their Lordships of the Supreme Court and on the basis of these decisions he urged that where the murder had been committed in a brutal manner it would not be fair exercise of discretion by the court not to award death sentence and instead to award the sentence of life imprisonment. We will examine these three decisions presently. 21. THE first decision relied upon by the learned Counsel is, Carlose john v. State of Kerala, AIR 1974 SC 1115 . In this case their Lordships held that where the accused were in the grip of emotional stress at the time of committing murder it would not be a case where death sentence should be awarded. 21. THE first decision relied upon by the learned Counsel is, Carlose john v. State of Kerala, AIR 1974 SC 1115 . In this case their Lordships held that where the accused were in the grip of emotional stress at the time of committing murder it would not be a case where death sentence should be awarded. It was further held that the sentence of imprisonment for life would be adequate. On the basis of this decision the learned Government Advocate urged that the murder in this case was a premeditated one and was not committed by the appellants when they were in the grip of emotional stress and, therefore, the lesser punishment of life imprisonment should not be awarded. This judgment is not an authority for the proposition that where there is absence of emotional stress the sentence of life imprisonment cannot be awarded and that a sentence of death must be awarded. 22. IN the case of Balwant Singh v. State of Punjab, AIR 1976 SC 230 their Lordships observed that award of sentence other than the sentence of death was the general rule under the new Code of Criminal Procedure and only special reasons would warrant the passing of death sentence. Without making any attempt to catalogue the circumstances in which the death penalty may be imposed, their Lordships, observed that the special reasons which may justify the passing of death sentence could be the commission of crime by a professional or hardened criminal or commission of the crime in a very brutal manner or on a helpless child or a woman or the like, This judgment is also not an authority for the proposition that in all cases where the murder has been committed in a very brutal manner the sentence of death must be imposed. In fact their Lordships specifically provided that it was not possible to catalogue all the circumstances in which the sentence of death must be passed, or that the lesser penalty of life imprisonment may not be imposed. While giving a few instances in which the penalty of death could be imposed their Lordships were not at all intending to lay down that in these circumstances the penalty of death must be imposed. Their Lordships have also observed that under the new Code of Criminal Procedure award of life imprisonment is the rule and award of death penalty is the exception. Their Lordships have also observed that under the new Code of Criminal Procedure award of life imprisonment is the rule and award of death penalty is the exception. In the case of Ambaram v. The State of Madhya Pradesh, AIR 1976 SC 2196 their Lordships did not refer to any circumstances which may justify passing of death sentence instead of sentence of life imprisonment. Their Lordships merely referred to the case of Balwant Singh (supra) and observed that under the new Code of Criminal Procedure life imprisonment was the rule and death sentence was the exception. Thus this judgment is not at all helpful to the learned Government Advocate. 23. IN view of the above discussion we dismiss the State Appeal (Criminal Appeal No. 796 of 1977). K.J.C.