JUDGMENT 1. Accused-appellant A.3 Uttamkumar has been convicted under sections 148 and 302, I.P.C. and under the former count has been sentenced to undergo 2 years rigorous imprisonment and under the later count to imprisonment for life and the other accused-appellants namely; A-i Dal-chand, A-2 Smt. Sugani Bai A.4. Sanjeevkumar, A.5. Mahenderkumar, A.6. Arvindkumar. A.7. Kundanlal, A.8. Rahul and A9. Subhash have been convicted under sections 147 and 302 read with 149 I.P.C. Under the former count, each of them has been sentenced to rigorous imprisonment for 1 year and under the later count to imprisonment for life. The sentence have been ordered to run concurrently. 2. Deceased Sohanlal was and the accused-appellants are the contractors of liquor in Udaipur, on May 9, 1977 Sohanlal deceased along with Devilal P.W. 15, his employee, and one Bhanwarlal had gone in his jeep D.H.O. 2865 (Jonga) at about 7.30 or 8 p m. to take their meals at the hotel of Sunderlal P.W. 9 situated outside Surjapole, Udaipur. The jeep was stationed on the other side of the road opposite the restaurant of Sunderlal P.W. 9 It is alleged that there was a deep rooted enmity in between Sohanlal deceased on the one hand and the accused-persons on the other hand Apsara Hotel of which Dalchand is said to to be the owner is situated only at a distance of about 150 year or so, from the restaurant of P.W. 9 Sohanlal. When Sohanlal deceased along with Devilal P.W. 15 was taking his dinner inside the restaurant of P.W. 9 Sunderlal, it is alleged that the accused-appellant A-3 Uttamkumar along with A 5 Mahendrakumar came there and there after seeing them taking meals went away. After finishing the meals, when Sohanlal deceased and Sunder Lal P.W. 15, reached near the jeep, which as already stated earlier was stationed on the other side of the roads, it is alleged that all the accused-appellants surrounded them and started hurling abuses Accused-appellant A2 Smt. Sugni Bai had by that time appeared in the near by lane and is said to have delivered a knife to accused-appellant (Al) Dalchand, her husband, and exhorted accused-appellant (A3) Uttam kumar. her son to finish Sohanlal. Accused-appellant (A3) Uttamkumar spontaneously dealt a stab wound by a knife (Which was handed-over to him by his father, accused-appellant A-l Dalchand) on the right side of the chest of Sohanlal, who fell down. her son to finish Sohanlal. Accused-appellant (A3) Uttamkumar spontaneously dealt a stab wound by a knife (Which was handed-over to him by his father, accused-appellant A-l Dalchand) on the right side of the chest of Sohanlal, who fell down. Sohanlal immediately rushed to a three wheeler scooter, which was standing nearby and its driver Mohammed Yaqub P.Y/. 10 was standing nearby. Devilal P.W. 15 followed Sohanlal to the three wheeler scooter. P.W, 10 Mohammed Yaqub drove the three wheeler scooter to the Hospital where Sohanlal was pronounced dead. 3. Devilal P.W. 15 went to police station, Surajpole Udaipur and lodged a report, Exh. P/20 at about 9.30 p.m. Raghunathsingh P.W. 16, the then S.H.O., Police Station, Surajpole, Udaipur, before whom Devilal P.W. 15 lodged the report Exh. P/20 took into his possession the blood-stained clothes of Devilal as well as knife, Exh. 1 produced by Devilal P.W. 15 which be is said to have picked up from the spot and which according to him was thrown by accused A 3. The clothes and the knife (dagger) were seized and sealed by Raghunath Singh P.W. 16, On May 12, 1977 Raghunath Singh, S.II. O. prepared an inquest report of the dead-body of Sohanlal and also prepared the site-plan, Ex. P. 10 at the instance of Devilal P.W. 15. All the accused-appellants were arrested by Raghunathsingh, S.H.O. under the various memos. Accused-appellant (A4) Sanjeev Kumar is said to have given an information to Raghunath singh, S.H.O. P.W. 16 on May 15, 1977, after his arrest, to get a scabbard recovered from the room of Apsara Hotel Raghunathsing P.W. 16 entrusted the job of recovery to Kanchansingh, P.W. 13, second officer on police station, Surajpole. In consequence of his information, the accused got recovered a scabbard from room No. 33 of Apsara Hotel to Kanchansingh, P.W, 13. Seized articles namely daggar and clothes were sent to Chemical Examiner and Serologist and the Chemical Examiner detected blood except in item No. 10, The controlled soil. The Serologist in his report, Exh. P/25 found that the daggar was stained with human blood, but no report of grouping of blood for the reasons mentioned in the report could be given. 4. The Serologist in his report, Exh. P/25 found that the daggar was stained with human blood, but no report of grouping of blood for the reasons mentioned in the report could be given. 4. After due investigation, a challan was filed against all the 9 accused-appellants and learned Magistrate committed all the accused-appellants to learned Sessions Judge, Udaipur for trial and the case was transferred to learned Additional Sessions Judge, Udaipur. Charges under sections 302, 148,120 B, 147 and 302 read with 149, I.P.C. were framed against all the accused-appellants. The accused-appellants pleaded not guilty to the charges and claimed to be tried, On behalf of the prosecution as many as 16 witnesses were examined. Thereafter, each of the accused-appellants was examined under section 313, Cr. P.C. to explain the circumstance appearing against them, in the evidence of the prosecution witnesses. The accused-appellants stand on a plan of denial. Accused-appellants A3 Uttamkumar, A2 Smt. Sugani Bai and A9 Subhash set up a plea of alibi that they were out of Udaipur on the date of incident. Accused-appellant A2 Smt. Sugani Bai and A3 Uttamkumar are said to have gone to Mandsore in connection with the marriage of Nirmala. Accused-appellant Al Dalchand and A5 Mahendra-kurnar took a plea that at the time of incident,they were entertaining the guests. On behalf of the defence, the statement of D. W. 1 Hemsingh D.W. 2 Madan Lal, D.W. 3 Mohanlal, D.W. 4 Girdharisingh, D.W. 5 Mohan Shanker, D.W. 6 Ranchord Bhai, D.W. 7 Ashok Mehta D.W. 8 Dr. B.P. Gupta and D.W. 9 Khaliluddin were recorded. 5. Placing reliance on the solitary statement of an eye-witness P.W. 15 Devilal, Learned Additional Sessions Judge, Udaipur convicted and sentenced them as aforesaid. Learned Addl. Sessions Judge held that though no charge of criminal conspiracy for commission of the offence of murder is made out, but it is established on record that there was a deep seated enmity for a pretty long time in between deceased Sohanlal and the accused-appellants and it furnished the motive for the accused to murder Sohanlal. Learned trial court has also held that on the evidence of Dr. G,L. Dad P.W. 3, it can be said that the deceased died as a result of stab wound, which was caused by dagger Exh. 1. Dr. Learned trial court has also held that on the evidence of Dr. G,L. Dad P.W. 3, it can be said that the deceased died as a result of stab wound, which was caused by dagger Exh. 1. Dr. Dad, on conducting Autopsy on the dead-body of Sohanlal on May 12, 1977 found that there was a stab wound 4cm x 1.75 cm. x 6 cm. deep (Lung deep) spindle oval shaped, obliquely placed over the front of the chest, right side medial end of first inter costal space just below medial part of right clavicle in right parasternal region-wound was directed posteriorly. The margins were clean and regular and well defined and large quantity of blood was coming out from the wound. There was cut in upper border of 2nd inter-costal cartilage (right side). The duration of the wound was within 2 hours before the death. In the opinion of the doctor the death was due to shock as a result of haemorrhage due to injuries in the right lung and right internal artery which was ante-mortem in nature and sufficient to cause death. Learned Additional Sessions Judge did not place reliance on the statement of Dr. B.P. Gupta, D.W. 8 that the injuries could not be caused by a dagger Ex. 1. In the opinion of learned Judge, Dr. Gupta D.W. 8 had no occasion to see the injuries and his opinion is based only on the findings of Dr. Dad P.W. 3, contain"d in the postmortem report. Learned lower court has placed reliance on the statement of P.W. 15 Devilal notwithstanding the fact that his statement was criticised on the ground that he was sole inimical interested witnesses against the accused-appellants. It was further held by learned Additional Sessions Judge, Udaipur that the occurrence took place inside the lane and that there was sufficient reflection from the lights of the main road in which the accused-appellants could be identified in the lane. In the opinion of learned lower court, looking to the manner in which the occurrence took place, it can be said that the accused-appellants formed an unlawful assembly and their common object was to commit murder of Sohanlal and in the prosecution of the common object of the assembly one of its member accused A3 Uttamkumar, caused the death of Sohanlal. 6. We have heard Mr. 6. We have heard Mr. Frank Anthony, learned Senior Advocate, Supreme Court of India and Mr. Bhagwati Prasad, learned Advocate for the accused-appellants and Mr. M.D. Purohit, learned Public Prosecutor for the State, 7. first contention of Mr. Anthony, learned Advocate for the accused-appellants is that the entire family has been involved. The first information report, Exh. P/20, could not be lodged at 9.30 p.m. on the date of incident and a look at it will show that it appears to have been written after consultation. It is neatly well written first information report, which could have been hardly lodged within 30-40 minutes of the occurrence. It is further contended that the first information report, Exh. P/20 reached the concerned Magistrate on May 13, 1977 and delay has not been explained. In support of his contention that the delayed dispatch of the first information report to the concerned Magistrate is a serious infirmity in the prosecution case, learned Advocate has placed reliance on Balaka Singh and others v. The State of Punjab (A.I.R. 1975 S.C. 1962) and Podda Narayana and others v. State of Andhra Pradesh (A.I.R. 1975 S.C. 1252). A Division Bench of this Court to which one of us (justice M.B. Sharma) was a party had the occasion to deal with similar arguments and referring to the aforesaid Balakasinghs case (supra) and Podda Narayanas case and the other authorities, in Yogendra Singh and others v. State of Rajasthan (Cr. L.R. (Raj.) 1979 page 443) , it was observed that though under section 157 Cr. P.C. on receipt of a report of a cognizable offence the Incharge Police Station must "forthwith" send a report of the same to a Magistrate empowered to take cognizance of such offence upon a polite report and if it is not done then it is a serious infirmity in the prosecution case. But, if on the evidence on record, the court comes to the conclusion that the first information report was actually recorded without delay and the investigation started on its basis then, howsoever improper or objectionable the delayed receipt of the report by the Magistrate concerned may be, it will not necessarily justify the conclusion that the entire case of the prosecution is false. We will later on advert to the statement of P.W. 15 Devilal, who lodged the report and to the statement of P.W. 16 Raghunath singh, S.H.O., the investigating officer, but suffice it to say for the present that from the statements, we are satisfied that the report was lodged and mere delay in dispatching the report to the Magistrate concerned, in the facts and circumstances of the case does not affect the case of the prosecution. 8. It is also contended by Mr. Anthony, learned Advocate for accused-appellants that in the inquest report Exh.P/8, the names of the accused-appellants were not mentioned and according to him under sec. 174, Cr.P.C., it is necessary that the names of the accused-appellants should be mentioned in the inquest report. According to him, the omission of the names of the accused-appellants in Exh.P/8 goes to show that till then the first information report had not been lodged and the names of the appellants 'ere not known and that also throws a doubt on the prosecution case. In support of his submission, learned Advocate has placed reliance on Gurdeo Singh v. State of Punjab, (Vol LXV PLR 409) , Banwari v. State of Rajasthan (1978 RLW 340) , Falagsher and another v. State of Rajasthan (1978 Cr.L.R. (Raj) 613) and on Balaka Singhs case (Supra). We may state that all those cases were decided on their own facts. To our mind, it is not the requirement of law that under section 174, Cr.P.C., the names of the accused-appellants should be mentioned in the inquest report. The object of holding an inquest report under section 174, Cr.P.C. is simply to make an investigation and to draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury, as may be found on the body, and stating in what manner, or by what weapon or instrument if any, such marks appear to have been inflicted. We may refer here to Podda Narayans case (supra) wherein, their Lordships of the Supreme Court have dealt with the scope of section 174, Cr.P.C. and have held that looking to the limited scope of the proceedings under section 174, Cr.C.P., the question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the processing under Section 174,Cr,P.C. Mr. Anthony, learned Advocate for the accused-appellants submits that in the aforesaid case, the facts and all the details were found and, therefore, the observations of the Supreme Court should be seen in the context of the facts of the case. But, we are of the opinion that their Lordships of the Supreme Court in the aforesaid authority, have dealt with the scope and ambit of section 174, Cr.P.C. and have observed as stated earlier. A division bench of this Court in Yogendra Singhs case (supra) dealt with the scope of section 174 Cr.P.C. and observed that under section 174 Cr.P.C. read with rules 6.31 and 6.34 of the Police Rules, it is not necessary that the names of the assailants or of all the witnesses should be contained in the inquest report and we are of the opinion that merely because the names of the accused-appellants are not contained in the inquest report, it can not be said that the FIR Exh.P/20 had not been lodged by PW 15 Devilal at the time when it is purported to have been lodged by him. We do not agree with the submission of learned Advocate for the accused-appellants that the first information report Ex.P.20 has been antedated or was lodged much after 9.35 p.m. on the date of incident. 9. Having disposed of the above submissions of learned Advocate for the accused-appellants we have to see as to whether the case of the prosecution as brought out, is such which should be relied upon. The whole family of the accused-appellants has been involved in the incident in which deceased Sohanlal received a single stab would, allegedly at the hands of accused-appellant (A3) Uttamkumar. Accused appellant Dalchand (Al) is husband of accused-appellant (A2) Smt. Sugani Bai, accused-appellants (A3) Uttamkumar, (A4) Sanjeev kumar and (A5) Mahendra Kumar are the sons of Dalchand. The whole family of the accused-appellants has been involved in the incident in which deceased Sohanlal received a single stab would, allegedly at the hands of accused-appellant (A3) Uttamkumar. Accused appellant Dalchand (Al) is husband of accused-appellant (A2) Smt. Sugani Bai, accused-appellants (A3) Uttamkumar, (A4) Sanjeev kumar and (A5) Mahendra Kumar are the sons of Dalchand. Accused-appellant (A6) Arvindkumar is grand son of accused-appellant (Al) Dalchand and accused-appellant (A7) Kundanlal is the son-in-law of accused (A 1), accused-appellant (A8) Rabul is the son of accused-appellant (A7) Kundanlal and accused-appellant (A9) Subhash though not a family member of the other accused, but is said to be a family friend. The case of the prosecution rests on the solitary statement of PW 15 Devilal, who was an employee of deceased Sohanlal and relations of Devilal PW 15 with the accused-appellants can not be said to be cordial. Though PW 15 Devilal, who at the time his statement was recorded was studying in the first year commerce, denied in the very first line of the cross-examination that there was any enmity in between him and the accused-appellants but when lie was subjected to cross-examined, he had to admit that there are many criminal cases in between him and the accused-appellants. A case filed by him against the accused-appellants (A7) Kundanlal, (A8), Rahul, (A5) Mahendra Kumar and (A3) Uttamkumar under sections 323, 405 and 452 l.P.C. On 4 November, 1976 was dismissed as admitted by him in his statement. He also admitted about various other cases. A perusal of Ex.D/5 order-sheet dated 21 June, 1977, Ex.D/6 a copy of the complaint dated 15 November,1976 under section 107, Cr.P.C. and Exh.D/7 dated 4 Nov. 1976 a copy of the complaint and Exh.D/8 a copy of the first information report in Cr.R.No. 224/76 dated 4 October, 1976 will make it all the more clear that the criminal cases will pending. Even the learned Additional Sessions Judge has come to a finding that there was a deep seated enmity in between the accused-appellants on the one hand and deceased Sohanlal and Dalchand on the other hand. It is thus, a case depending on the statement of a Solitary inimical witnesses. 10. Even the learned Additional Sessions Judge has come to a finding that there was a deep seated enmity in between the accused-appellants on the one hand and deceased Sohanlal and Dalchand on the other hand. It is thus, a case depending on the statement of a Solitary inimical witnesses. 10. This Court (Division Bench) in Kartar Singh v. The State (1955 R.L.W. 60) observed that where the conviction of the accused is based on the testimony of a single witness, such a witness must be of a sterling worth. It was observed;- "If it is found that the single witness to the occurrence is not sticking to the truth, then it is very unsafe to ignore the discrepancies appearing in his or her statement and convict the accused on that basis alone." In Badri v. State of Rajasthan (A.I.R. 1976 S.C. 560) it has been observed by their Lordships of the Supreme Court that since under the Evidence Act no particular number of witnesses is required for the proof of any fact, it is a sound and well-established rule of law that quality and not quantity of evidence matters. In each case, the court has to consider whether it can be reasonably satisfied to act even upon the testimony of a single witness for the purpose of convicting a person. Their Lordships observed (in para 18) as under:- "If a witness, who is the only witness against the accused to prove a serious charge of murder, can modulate his evidence to suit a particular prosecution theory for the deliberate purpose of securing a conviction, such a witness cannot be considered as a reliable person and no conviction can be based on his sole testimony." 11. We are of the opinion that under section 134 of the Evidence Act, no particular number of witnesses is required to prove a certain tact. It is the quality of the evidence and not the quantity which matters and if the statement of a solitary witness is consistent throughout and there are no major contradictions in his statement and the same conspires confidence in the court, then the conviction can be based on the testimony of a solitary witnesses. It is for the court, ultimately to decide as to whether the solitary witness is the witness of truth or not ? 12. It is for the court, ultimately to decide as to whether the solitary witness is the witness of truth or not ? 12. We have said earlier that PW 15 Devilal is solitary inimical witness of the occurrence and, therefore, we will scrutinise his statement with caution. 13. Mr. Anthony, learned Advocate for the appellants has subjected the testimony of PW 15 Devilal to severe criticism. According to him, PW 15 Devilal has modulated his statement to suit his convenience so as to involve as many as 9 accused-appellants in a case where there is a single stab wound. He submits that the presence of a single injury, which according to PW 15 Devilal was inflicted by accused-appellant (A3) Uttamkumar clearly shows that it is a case of over involvement of the accused-appellants and all have been roped in. So much so, that accused-appellant (Al) aged 75 years and his wife accused-appellant (A2) aged 65 years have also been involved. According to Mr. Anthony, learned Advocate for the accused-appellants, the trial court while appreciating the evidence of PW 15 Devilal glossed over a series of irreconcilable discrepancies and crucial infirmities in his statement. 14. Mr. Purohit, learned Public Prosecutor for the state has submitted that the case of the prosecution is consistent from the very beginning. In the F.I.R. (Exh.P/20), which was lodged on the date of incident at about 9.30 p.m. the names of all the accused-appellants have been mentioned, and also the fact that accused-appellant (A2) Smt. Sugani Bai first gave the dagger to accused-appellant (A 1) Dalchand and also commanded accused appellant (A3) Uttamkumar, her son to put an end to the life of Sohanlal. According to Mr. Purohit, learned Public Prosecutor the same facts have been stated by PW 15 Devilal in his statement in the court and the discrepancies pointed out in his statement from the first information report Ex.P/'20 are not on material points and do not affect the truth of his statement. 15. We will first advert as to whether the case of the prosecution that all the accused-appellants formed an unlawful assembly and their common object was to cause the death of Sohanlal is correct or not. The learned Additional Sessions Judge has observed at page 304 of the paper book (internal page 56 of his judgment) as follows. 15. We will first advert as to whether the case of the prosecution that all the accused-appellants formed an unlawful assembly and their common object was to cause the death of Sohanlal is correct or not. The learned Additional Sessions Judge has observed at page 304 of the paper book (internal page 56 of his judgment) as follows. "Regarding the formation of un-lawful assembly upon evidence of Devilal it is held proved that the accused Dalchand, Kundan Lal, Mahendra Kumar, Uttam Kumar, Rahul, Subhas, Sanjeev Kumar, Arvind and Smt. Sugani Bai, they all were present on the scene and participating by abusing assaulting and surrounding. The accused Sugani Bai was also present and that she handed over the knife to accused Dalchand which reached Uttamkumar in time with these facts proved the formation of un-lawful assemble is borne out and I find that the prosecution has successfully proved point No. 1 against all the accused." 16. We will presently show that the conclusion of the learned sessions Judge that all the accused appellants were members of an unlawful assembly is not correct. PW 15 Devilal has stated that he and Sohanlal deceased were taking their meals in the restaurant of Sunderlal PW 9. Accused-appellants (A3) Uttamkumar and (A5) Mahendra Kumar came along with 4 and 5 persons and after seeing them went away. He has further staled that as a result of deflation of tyre of their jeep, which was standing in the other side of the road, there was a hissing sound and they rushed towards the jeep. All the accused-appellants except accused (A2) were standing there and they asked them as to why they have deflated the tyre, the accused-appellants went inside the nearby lane. He further states that Sohanlal deceased also went in the lane and while he (Sohanlal) was talking to the accused-appellants, who were hurling abuses at him and were pushing him, accused-appellant (A2) who was standing in the lane gave a knife to Accused (A 1) who went near her, took the dagger from her and gave it to accused A3. It is not his statement that when on hearing the hissing sound of the deflation of tyre, he and the deceased went towards the jeep, the accused persons or any of them were armed. It is not his statement that when on hearing the hissing sound of the deflation of tyre, he and the deceased went towards the jeep, the accused persons or any of them were armed. If accused-appellants (A3) and (A5) along with four or five persons had seen the deceased and Devilal PW 15 taking their meals in the restaurant of PW 9 Sunderlal and if there intention would have been to put an end to the life of Sohanlal deceased, there was sufficient time for the accused-appellants to return to the Apsara Hotal, which was not far of, and they would have returned with arms to achieve their object. The very fact that the accused-appellants other than accused-appellant (A2) who were near the jeep did not come with arms, goes to show that at that time the common object of the accused-appellants was not and could not have been to cause the death of Sohanlal. It can hardly be said that eight un-armed persons will form an unlawful assembly and that too to murder an enemy, who was not only accompanied by PW 15 Devilal but is said to have been accompanied by other two persons namely Bhanwar Lal and one Durgesh PW 14. Therefore, atleast till that time, the accused-appellants did not form an unlawful assembly nor common object could have been or was to cause the death of Sohanlal deceased. 17. The question is as to whether at any subsequent time, till accused (A3) Uttamkumar caused a single stab wound to Sohanlal, the accused-appellants ever became members of the unlawful assembly and their common object was to cause death of Sohanlal or they could have had the knowledge that any one of them may cause the death of Sohanlal ? 18. A look at the first information report Ex. P/20, will show that besides 8 accused-appellants namely (AI) Dalchand, (A3) Uttara Kumar, (A5) Mahendra kumar (A4) Sanjeevkumar (A6) Arvind Kumar, (A7) Kundanlal H(A8) Rahul and (A9) Subhash, five or more persons are also mentioned there- in, who are said to have encircled P.W. 15 Devilal and deceased Sohanlal and Bhanwarlal. In his statement, in the court Devilal P.W. 15 does not state that the accused-appellants and 4 or 5 other person with them had encircled Sohanlal and Bhanwarlal near the jeep. A fact which is stated in F.I.R. Exh. In his statement, in the court Devilal P.W. 15 does not state that the accused-appellants and 4 or 5 other person with them had encircled Sohanlal and Bhanwarlal near the jeep. A fact which is stated in F.I.R. Exh. P/20, but has stated it was when Sunder Lal went on the road that the accused abused him, pushed him and encircled him. There is no mention by P.W. B 15 Devilal in Ex. P. 20 or his statement Ex. D. 3 u/s 164 Cr. P.C. that there was defection of tyre and as a result of hissing sound produced by it he, the B deceased Sohanlal were attracted towards the jeep. This omission makes the statement of P.W. 15 that as a result of deflation of tyre he and Sohanlal will B and then the incident took place as doubtful. It is quite surprises that the Court put a question to P.W, 15 Devilal (at page 92 of the paper book in the bottom) about the fact of deflation of tyre in his statement u/s 161, Cr.P.C. This was not warranty law. Be that as it may P.W. 15 Devilal in his statement in the court has stated that all the accused-appellants were pushing Sohanlal and were hurling abuse. A look at Ex. P/20 will show that there is B no mention about it and when P.W. 15 Devilal was confronted with Ex. P./20, B he could not explain it. He does state in his statement in the court that out of the remaining the accused appellants caught few hold of deceased Sohanlal and a blow by dragger was given by Uttam Kumar (A3) But he was confronted with Ex. P. 20 (F.I.R.) where in it is not stated that few of the accused caught hold of Sohanlal by his hand. It is only mentioned in Ex.P.20 that accused caught hold both the hands by Sunder Lal while abusing stated B beating and then knife blow was given by accused A-3. P.W. 15 Devilal has stated in the Court that all the accused said that Sohanlal be beaten, but he was confronted with Ex. P. 20 and his statement Ex. D. 3 u/s 164, Cr. P.C. when this fact is not mentioned. His explanation that the reason is that he did not then remember does not appeal 10 us. P.W. 15 Devilal has stated in the Court that all the accused said that Sohanlal be beaten, but he was confronted with Ex. P. 20 and his statement Ex. D. 3 u/s 164, Cr. P.C. when this fact is not mentioned. His explanation that the reason is that he did not then remember does not appeal 10 us. No doubt, he has stated that B accused-appellant (A2) Smt. Sugani Bai a lady aged about 63 years was standing in the lane, she was having a hacked deggar, which she gave to accused-B appellant (Al) who gave it to accused A3. But this part of his statement does Not impress us notwithstanding the fact that it is mentioned in Ex. P./20 as well as in his statement recorded in the Court. P.W. 15 Devi Lal has stated Bon this point that accused-appellant (A2) Smt. Sugani Bai loudly said to Uttamkumar take this knife and end the matters for ever. Accused-appellant B(A1) Dalchand went to accused-appellant (A2) Smt. Suganibai and took from her dagger type knife and he gave it to Uttam Kumar accused (A3) who stabbed Sohanlal. A look at Ex. P/20 will show that there is no mention that accused-appellant (A2) so said loudly to Uttamkumar. All that is mentioned is that she said loudly, take this knife and put an end for ever. There H is no mention in Ex. P. 20 of accused A2 having exhorted accused HA3 to take the knife and put an end to the life of Sohanlal. This is Han improvement in the statement of P.W.15 Devilal, in the Court. We H\have already stated earlier that if the intention of the accused-appellants or any of them would have been to cause the death of Sohanlal and if the accused-appellants for that purpose had formed an unlawful assembly, they or any of them would have come armed as there was some time in between accused-appellant (A3) and accused-appellant (A5) Mahendrakumar and four or five of their companions in seeing the deceased taking meals in the restaurant, and the taking place of the incident. In F.I.R. Ex. P. 20 there is mention that 5 or 6 persons were present and intervened but could net succeed. PW15 Devilal has said that he knew them by face, but name of them has been examined for the prosecution. In F.I.R. Ex. P. 20 there is mention that 5 or 6 persons were present and intervened but could net succeed. PW15 Devilal has said that he knew them by face, but name of them has been examined for the prosecution. Though the trial judge has held that Bhanwaral was not an eye witness and not examining him is not consequential But to us from F.I.R. he appears to be an eye witness and we do not agree with the trial judge but he too has not been examined. Therefore, only on the solitary statement of Devilal P.W. 15, we are unable to say that the incident took place as alleged by him and accused-appellant (A2)Smt. Sugani Bai gave the dagger to accused-appellant Al, who gave it to Uttamkumar. We have already extracted about the conclusions of the learned trial judge on the forming of an un-lawful assembly by the accused-appellants and common object of it. But we are of the opinion that the statement of P.W. 15 Devilal that all the accused persons encircled Sohanlal deceased, abused him, some caught hold of him and accused A2 Smt. Sugani Bai gave knife to accused Al Dalchand who gave it to Accused A3 Uttamkumar is not correct. We are therefore unable to agree with the learned Trial Judge that the accused person formed an unlawful assembly and the common object of the assembly was to cause the death of Sohanlal. 19. We may state here that the controversy was raised before the trial court that in the lane where the occurrence took place., there was no source of light. There is no convincing material on record that there was any source of light in the lane, where the incident took place. Learned Trial Court has observed that there must be a reflection from the lights on the main road, in which the accused-appellants could have been seen or identified. We may observe that it is a matter of evidence as to whether there was light and, if so, sufficient light in which the incident could be seen and the assailants could be identified. It is not a matter of conjectures P.W. 16 Raghunathsingh Investigating officer has given a categorical statement that in the lane, where the occurrence took place, at the time of incident there was no light. It is not a matter of conjectures P.W. 16 Raghunathsingh Investigating officer has given a categorical statement that in the lane, where the occurrence took place, at the time of incident there was no light. He also stated that it is correct that there was darkness in the lane and the man standing on the entrance of the lane could not have seen the incident. The trial court has criticised the statement of S.H.O. Raghunath Singh, P.W. 16 and has observed that he was not present at the time of incident and, therefore, he is not in a position to say as to whether there was any light at that time in the lane or not. Assuming that his statement on that point may not be correct still the duty of the prosecution is to lead evidence that there was so much light in which the incident could have been seen and the accused could be identified. The trial court has concluded that the incident took place about 1 /3rd inside the land. No doubt, Devilal P.W. 15 has stated that there was road light in the lane, but he did not mention it either in Ex P/20 (F.I.R.) or Ex. D.3 his statement under section 164, Cr. P.C. Thus, there being no positive material that there was light or any source of light in the lane at the time of the incident, it is a lacuna in the prosecution case and it can not conclusively be said that at the time of the incident there was sufficient light. As per the case first all the accused-appellants were standing near the jeep. It is not the case of the prosecution that any of the accused-appellants was armed at that time and the dagger is said to have been handed over to accused A3 Uttamkumar by accused-appellant Al Dalchand and to accused Al by accused A2 in the lane. In the absence of any material that there was any source of light in the lane at the time of incident. It is not possible to hold that P.W. 15 Devilal could have seen the incident taking place in the lane as alleged by him. There was enmity with P.W. 15 Devilal also, who per his statement was standing only at a distance of 2 or 21/2 paces from the accused, but surprisingly no attempt was made to beat him. It is not possible to hold that P.W. 15 Devilal could have seen the incident taking place in the lane as alleged by him. There was enmity with P.W. 15 Devilal also, who per his statement was standing only at a distance of 2 or 21/2 paces from the accused, but surprisingly no attempt was made to beat him. Therefore, also we are unable to hold only on the statement of P.W. 15 Devilal that the accused appellants formed an unlawful assembly with the common object to cause the death of Sohanlal deceased. 20. Now we have to see as to whether the statement of Devilal P.W. 15, that it was accused appellant A3 (Uttamkumar) who stabbed Sohanlal and caused his death is such which should be relied upon. Mr. Purohit learned Public Prosecutor, contends that the story of the prosecution with regard to accused A-3 (Uttamkumar) is consistent from the very binging. In the first information report, Ex. P. 20 it is clearly mention that it was he, who stabbed Sohanlal and the same fact is stated in the statement in the Court by Devilal P.W. 15. Therefore, according to Mr. Purohit notwithstanding the fact that the statement of P.W. 15 Devilal has not been relied upon for the other accused persons there is no reason to dis-believe him so far as accused A.3 is concerned. In support of his submission, he has placed reliance on State of Punjab v. Wassan Singh and others (Cr. L.R. S.C. 1981 page 122). It has been held in this case by the Supreme Court that the consistent evidence of a witness in agreement with prosecution case cannot be rejected on account of minor discrepancies. To our mind this authority has no application to the present case. In the instant case as already observed, Davilal P.W. 15 is the sole inimical eye witness. We have discussed at length his evidence in our earlier part of judgment. Apart from what has been stated earlier and that we have not placed reliance on him so far the other accused-appellants are concerned, to us Devilal P.W. 15 does not appear to be a witness of sterling worth having modulated his statement to involve the entire family. We have discussed at length his evidence in our earlier part of judgment. Apart from what has been stated earlier and that we have not placed reliance on him so far the other accused-appellants are concerned, to us Devilal P.W. 15 does not appear to be a witness of sterling worth having modulated his statement to involve the entire family. The entire story introduced by him about the deflation of tyre of the jeep, producing a hissing sound so as to attract P.W. 15 Devilal, deceased Sohanlal and Bhanwarlal is an improvement not having been mention by him in Ex. P/20 (FIR) and Ex. D/3 (his statement under section 164, Cr. P.C.). We have thus not believed the genesis of the incident and the manner in which the incident according to the statement of P.W.15 Devilal is said to have taken place. We have also not believed that knife (dagger) was given first by accused A2 to accused A I, who gave it to accused A3 (Uttamkumar). We are, therefore; of the opinion that the statement of P.W. 15 Devdal, the sole inimical witness, in the facts and circumstances of this case in not such on which reliance can be placed to convict accused A3 (Uttamkumar) for an offence under section 302, I.P.C. 21. Having arrived at the above conclusion it is not necessary for us to discuss the defence of the accused-persons. 22. We, therefore, allow the appeal of the accused-appellants, set aside the judgment of learned Additional Sessions Judge, convicting and sentencing accused A3 (Uttamkumar) under section 148 and 302, I.P.C. and other accused-persons under sections 147, 302/149, I.P.C. We acquit all the accused of the charges levelled against them. Accused-persons other than A3 Uttamkumar are on bail. Their bail-bonds shall stand cancelled. They need not surrender to their bail-bonds. Accused A3 (Uttamkumar) is in jail. He shall be set at liberty forthwith if not wanted in any other case.Appeal Allowed. *******