JUDGMENT 1. - D.B. Criminal Murder Reference No. 2/81, D.B. Cr. (Jail Appeal No. 339/81, D, B. Criminal (Jail) Appeal No. 386/81 and D. B. Criminal Appeal No. 352/81 arise out of the judgment passed by the learned Additional Sessions Judge, Nagaur dated 1-5-1981. The learned Additional Sessions Judge had tried the appellants for the murder of Surtaram and Magharam and by the aforesaid judgment convicted appellant Chaina Ram for the offence under Section 120B I.P.C. and sentenced him to imprisonment for life and a fine of Rs. 100/-in default to undergo three months rigorous imprisonment. Appellant Kheraj Ram was convicted for the offence under Section 302/34 I.P.C. for the murder of Surtaram and under Section 302 I. P. C. for the murder of Magharam and was sentenced to imprisonment for life and a fine of Rs 100/- in default to undergo three months rigorous imprisonment and on each count. Appellant Sohana Ram was convicted for the offence under Section 302/34 I. P. C. for the murder of Surtaram and under Section 302 I. P, C. for the murder of Megharam and was awarded death sentence for both the courts. He was further sentenced to a fine of Rs 100/- on each count. Appellants Asa Ram and Gyana Ram were convicted for the offence under Section 302/34 I. P. C. for both the murders and were awarded death sentence with the sentence of fine of Rs 100/- each for both the counts. 2. Briefly, stated the facts of the case giving rise to the trial of the appellants and the murder reference and the appeals are as under : 3. Durgaram (PW 11) a teacher in Middle School, Village Baldeo was a tenant in the house of Khumaram father of deceased Magha Ram. House of Chaina Ram is adjacent to the house. On 10-8-79 at about 8.00 P.M. Durgaram while returning to his house had seen all the appellants sitting in the house of Chaina Ram appellant. As those people were talking about some beating, Durgaram remained standing near his gate inside the house and over heard the talk. Chaina Ram told the remaining appellants that they should first of all do away with Surtaram who was interfering in their acts and was helping the enemies. Chaina Ram assured them to bear the expenses of the litigation and not to let them suffer in any way. Chaina Ram told the remaining appellants that they should first of all do away with Surtaram who was interfering in their acts and was helping the enemies. Chaina Ram assured them to bear the expenses of the litigation and not to let them suffer in any way. Thereafter the appellants went away from there. Durgaram immediately went to the house of Surtaram, who was sitting on his Chabutari (raised platform outside the house) and informed him what had transpired amongst the appellants at Chaina-Rams house. Surtaram asked Durgaram to call Ramdeva Prajapat, a Panch of the village, as the villagers had regard for what he said. Durgaram went to Ramdeva (P.W. 10) and conveyed the message of Surtaram. Durgaram stayed at the shop of Dhanraj. Ramdeva went to Surtaram and the latter told him that Durgaram had informed him that the appellants were intending to pick-up quarrel. Ramdeva went to the Dhani of Kherajram, where he met Kherajram and bis three sons Gyanaram, Asaram, and Sohanaram Ramdeva told Kherajram what he knows from Surtaram, Kherajram asked him to go to his house and they had no intention of any quarrel Ramdeva returned to his house. 4. At about 11 P.M. when Durgaram (P.W. 11) reading a book in his house was just going to sleep, he heard the cry of "Maro Maro" and "Dushman Ko Maro". He came out of the house and went towards the house of Surtaram. Surtaram at the time was sleeping outside his house on the Chabutari. The shriek of Surtaram attracted the attention of P.W- 1 Shri Ramaram, his servant (Hali) who was sleeping in a room adjacent to that Chabutri, Smt. Noji, wife of Surtaram who was sleeping inside the house also heard the shriek of her husband, Shri Ramaram and Smt. Noji saw Sohanaram armed with Gundasi, Gyanaram armed with Farsi, Asa Ram armed with an Axe and Kherajram armed with a Jai on the chabutari where Surtaram was. First of all, Sohanaram caused a Gandasi blow on the head of Surtaram and then all the four aforesaid appellants gave blows to Surtaram with the weapons they had with them. Durgaram also reached there and saw the appellants causing injuries to Surtaram. On hearing the shriek of Surtaram, his neighbour Bhagirathram (P.W. 13) also came out of his house. He saw Sohanaram passing through his house and the other three appe. Durgaram also reached there and saw the appellants causing injuries to Surtaram. On hearing the shriek of Surtaram, his neighbour Bhagirathram (P.W. 13) also came out of his house. He saw Sohanaram passing through his house and the other three appe. Hants namely, Kherajram, Asaram and Gyanaram passing through the lane. Bhagirathram also reached the place where Surtaram was lying injured, Durgaram went to Upsarpanch Malooram and informed him about the occurrence. Malooram accompanied Durgaram to the house of Surtaram where Shri Ramaram, Smt. Moji and Bhagirathram were present. Surtaram smeared with blood was lying below the cot. On being interrogated by Malooram, Surtaram informed him that Sohanaram, Gyanaram, Asaram and Kherajram had cut him with Gandasi, Farsi and Axe only a little-while ago. Other persons of the locality also reached there. Chimnaram Pemaram and Dharmaram went to inform Sarpanch Udaram about the incident. Mangilal brought a tractor of Ramkumar (P.W. 12) and Surtaram was taken in that tractor to Ladnu Hospital. Surtaram breathed his last on way to the hospital. The dead body was placed in the mortuary at the hospital. 5. Udaram on being informed by Chimnaram and others went to the house of Surtaram and came to know about Surtaram being taken to Ladnu Hospital in the tractor. While Udaram was getting ready for going to Ladnu Hospital. Baksharam brother of deceased Magharam went to him and informed that Sohana ram, Gyanaram, Asaram and Kherajram had killed his brother Magharam with Farsis and Lathis, when he, accompanied by Ganesharam (P. W. 2) was passing the road on his way to village from his Dhani. The tractor which had taken Surtaram to Ladnu Hospital had returned by that time and Ramkumar and the driver of the tractor informed Udaram about Surtaram breathing his last in the way. Udaram went in the tractor to Ladnu Hospital. He then went to police station Ladnu and at 6 A.M. on 11-8-79 presented Ex.P. 1, a written report, before Swaroop Singh (P.W. 17) S.H.O. of that police station. The S.H.O. registered a case and asked Udaram to go to the village. 6. The S.H.O. went to Ladnu Hospital and left L.C. Nandram there. He then went to village Baldoo at the place where the dead body of Magharam was lying outside the Dhani of Kherajram. He inspected the site and prepared the lite Plan Ex. The S.H.O. registered a case and asked Udaram to go to the village. 6. The S.H.O. went to Ladnu Hospital and left L.C. Nandram there. He then went to village Baldoo at the place where the dead body of Magharam was lying outside the Dhani of Kherajram. He inspected the site and prepared the lite Plan Ex. P. 1 and the Site Inspection Memo Ex. P. 2. Blood was found on the fencing at a distance of 296 ft. from the Dhani of Kherajram. Blood was taken from that place as well as the place where the dead body of Magharam was lying. The pair of shoes of Magharam lying near the dead body was also taken in possession. The Inquest Memo Ex.P. 3 of Magharam was prepared. 7. S.H.O. Swaroop Singh (P. W. 17) then went to the house of Surtaram and inspected the site. He prepared the Site Plan Ex. P. 4 and the Site Inspection Memo Ex. P. 5. The blood soaked soil and the contri-soil were taken. The S. H. O. after investigation at the site went to the hospital and prepared Ex. P. II, the Inquest Memo of the dead body of Surtaram. 8. At the requisition of the S. H. O. Dr. Phutarmal Jain, Medical Officer at Ladnu Hospital (P. W. 16) went to village Baldoo and conducted the autopsy over the dead body of Magharam at 1.15 P. M. on 11-8-79. The Doctor noted the following external injuries on his person; (1) Lacerated wound-5 cm x 1/2 cm x bone deep on parieto-occipital region at middle transversely. (2) Incised wound 2cm x 11/2 cm x 1 cm spingle shaped posterior to left ear. (3) Incised wound 2 cm x 11/2, cm x 11/2 cm over left arm lower ⅓ lat. (4) Bruise-8 cm x 2 cm. over it, lateral face and neck below ear. (5) Bruise 10 cm x 2 cm on left inguinal region. (6) Bruise 8 cm x 2 cm over anterior neck below thyroid cartilage. (7) Diffused swelling over anterior side of lower half on neck. According to the Doctor the duration of death was 12 to 16 hours of the postmortem examination. All the injuries were ante mortem in nature. The postmortem examination report is Ex. P. 27. On the same day at the requisition of S.H.O., Dr. (7) Diffused swelling over anterior side of lower half on neck. According to the Doctor the duration of death was 12 to 16 hours of the postmortem examination. All the injuries were ante mortem in nature. The postmortem examination report is Ex. P. 27. On the same day at the requisition of S.H.O., Dr. Phutar Mal Jain (P. W. 16) conducted the autopsy over the dead body of Surtaram at 4.00 P. M. The Doctor noted following external injuries on his person:- (1) Incised wound-6" x 3" transverse over left upper abdomen cutting 6th, 7th and 8th Lt. ribs and stomach protruded. (2) Incised wounds (two) (a) 4" x 3" x 2" and (b) 4/" x 2" x 2" arm posteriorly and axilla. (3) Incised wounds (two) (a) 4" x3" x 21/2" and (b) 4" x 1 x2" over it, side neck & back. (4) Incised wound 41/2" x 2' x 3" on rt. gluteal region vertically. (5) Incised wound-71/2" x 11/2" x 3" vertically over later ⅓ of high lateral posteriorly. According to the Doctor all the injuries were ante mortem in nature and were sustained within 12 to 16 hours of the post-mortem examination. The post mortem examination report is Ex. P. 26. 9. After the post-mortem examination of the dead bodies, their blood stained clothes were taken in possession by the S. H. O. and the dead bodies wen entrusted to their relatives for cremation. 10. On 12-8-1979, the S. H. O. arrested Sohanaram, Gyanaram, Asaram and Kherajram vide Memos Ex. P. 13, 14, 15 and 16 respectively. At the time his arrest Sohanaram was wearing Shirt Ex. 11 and Dhoti Ex. 12 which being blood stained were taken in possession by the police, Sohanaram furnished information Ex. P. 29 for getting the Gandasi recovered from beneath the Khejri tree in his badi (field). In pursuance of that information, the S. H. O. recovered Gandasi Ex. 1 at the instance of the appellant Sohanaram vide Memo Ex. P. 7. Gyanaraim furnished information Ex. P. 30 for getting recovered Farsi' from behind 6 the earthen Kothi in his house. The S. H. O. in pursuance of that information and at the instance of the appellant Gyanaram recovered Farsi Ex. 2 vide Memo Ex. P. 8. Appellant Asa Ram furnished information Ex. P. 31 for getting the axe recovered from his residential house. P. 30 for getting recovered Farsi' from behind 6 the earthen Kothi in his house. The S. H. O. in pursuance of that information and at the instance of the appellant Gyanaram recovered Farsi Ex. 2 vide Memo Ex. P. 8. Appellant Asa Ram furnished information Ex. P. 31 for getting the axe recovered from his residential house. In pursuance of that information and at the instance of the appellant Asa Ram, the S. H. O. recovered axe Ex. 3 vide Memo Ex. P. 9. Appellant Kherajram furnished information Ex. P. 32 for getting recovered Jal from near his residential house. In pursuance of that information and at the instance of appellant Kherajram, the S. H. O. recovered Jai Ex. 4 vide Memo Ex.P. 10. All the articles seized and recovered during the course of investigation were sealed then and there. The blood stained articles were sent for chemical examination with constable Hidwalsingh (P. W. 18). The report of the Chemical Analyser is Ex. P. 33 and that of the Serologist is Ex. P. 34 Part of the investigation was conducted by Swaroop Singh (P. W. 17) and part by Dy. S.P. Seesh Raj (P. W. 20). 11. After completion of investigation, charge-sheet against the appellants was filed in the court of Munsif & Judicial Magistrate, Deedwana. The learned Magistrate finding a prima facie case exclusively triable by the court of Sessions committed the five appellants to the court of Sessions Judge, Merta. The case was transferred to the court of Additional Sessions Judge, Nagaur. The learned Additional Sessions Judge charge-sheeted the appellants for the aforesaid offences and recorded their pleas. All of them denied the indictments and claimed to be tried. In order to substantiate its case, prosecution examined 18 witnesses in all. All the appellants in their statements under Section 313 Cr. P. C. totally denied the allegations levelled against them and stated that the witnesses were falsely stating out of enmity. Chainaram and Gyanaram pleaded alibi. Six witnesses were examined to substantiate the alibi plea of Chainaram and Gyanaram and to state that at the initial stage it was not known as to who the assaialants were. 12. The learned trial Judge placed reliance on the prosecution evidence and passed the judgment of conviction and sentenced the appellants for the various offences as stated earlier. Six witnesses were examined to substantiate the alibi plea of Chainaram and Gyanaram and to state that at the initial stage it was not known as to who the assaialants were. 12. The learned trial Judge placed reliance on the prosecution evidence and passed the judgment of conviction and sentenced the appellants for the various offences as stated earlier. As the sentence of death has been awarded to Sohanaram, Gyanaram and Asaram, the learned trial Judge has submitted the proceedings to this Court for confirmation of the sentence of death as required under Section 366 of the Code of Criminal Procedure. Being aggrieved by their conviction and sentences, the three appellants Sohanaram, Gyanaram and Asaram who have been awarded capital punishment, filed an appeal through the Superintendent, Central Jail, Jodhpur. Another appeal has been filed through the Superintendent, Central Jail, Jodhpur by the appellants Chainaram and Kherajaram. All the five appellants have also filed represented appeal. The three appeals were consolidated and heard alongwith the death reference. The three appeals and the death reference are disposed of by one single judgment. 13. We heard Mr. H. N. Calla, learned Public Prosecutor for the State and Mr. M.M. Singhvi, learned counsel for the appellants. The prosecution case against the appellants is three fold. First, the conspiracy at the house of Chainaram; second, the murder of Surtaram and third the murder of Magharam. 14. We would first deal with the conspiracy part of the case, which according to the prosecution resulted in the two murders in the same night. 15. At the very outset, we may observe that appellant Chainaram alone has been charge-sheeted for the offence of conspiracy under Section 120B I.P.C. When two or more persons agree to do or cause to be done an illegal act or an act which is not illegal, by illegal means, such an agreement is designated a Criminal Conspiracy as per definition of that offence under Section 120 A I. P. C. Criminal Conspiracy thus presupposes assembly of at least two persons. Despite the prosecution story being about the five appellants assembling at the house of Chainaram and conspiring to commit the murder of Surtaram at the first instance and thereafter to do away with the remaining enemies, Chainaram alone has been charge-sheeted for the offence under Section 120B I. P. C. and for that reason the learned counsel for the appellants has stressed that the ingredients of that offence are not made out. The learned Public Prosecutor has contended that there is an error in not charge-sheeting the remaining four appellants for the offence under Section 1 20B I.P.C. but they were all the time aware of the prosecution case and their case having not been prejudiced this irregularity in framing the charge it curable. 16. There cannot be any dispute on the point that criminal conspiracy cannot be there without there being two or more persons. It depends upon the circumstances of the case as to whether in a case, where there are more than one accused at the trial and prosecution alleges the involvement of all in the conspiracy but only one is charge-sheeted for the offence of criminal conspiracy, he can be convicted or not. 17. The sole direct evidence regarding the charge of criminal conspiracy is that of Durgaram (P.W. 11). The prosecution has examined Ramdeva (P. W. 10) to support his testimony. The learned Public Prosecutor has also relied on the version given by Surtaram to Ramdeva in that connection and taking it to be his dying declaration insisted for its being considered as a corroborative piece of evidence to what Durgaram had stated. 18. While narrating the facts of the case, we have stated the prosecution story about criminal conspiracy. The learned counsel for the appellants has strenuously contended that the story of criminal conspiracy through this witness is an after thought as it does not find place in the F.I.R. Udaram, who had filed the First Information Report, having died could not be examined at the trial. Though the evidence and the circumstances suggest that prior to his going to lodge the report he had gone to the hospital, still there is no definite evidence to prove that he had any talk with Durgaram prior to the filing of the First Information Report. Though the evidence and the circumstances suggest that prior to his going to lodge the report he had gone to the hospital, still there is no definite evidence to prove that he had any talk with Durgaram prior to the filing of the First Information Report. Apart from it, ordinarily F. I. R. can be used only for the purpose of corroborating, contradicting or discrediting its author if examined at the trial. It has been next contended by Mr. Singhvi that the evidence of Durgaram is not worthy of credence as it suffers from serious infirmities and also because the unnatural conduct of the witness in keeping quiet upto the evening of 13-8-79. Mr. Singhvi urged that the failure on the part of the prosecution to examine this sole witness on the point after such a delay in itself is sufficient to discard his evidence specially when he has also claimed to be an eye-witness to the murder of Surtaram. 19. The evidence of the Durgaram as an eye-witness to the actual incident of Surtaram's murder, would be dealt with at the relevent place, while discussing the murder of Surtaram. For the present we proceed to evaluate his evidence regarding criminal conspiracy. 20. The witness has admitted, that except Surtaram, he had not told anything to anybody regarding the talk amongst the appellants at the house Chairman and he directing the others to do away with Surtaram first, as ho was interfering in their acts and siding the enemies. It is important to note that he had not even told Ramdeva about it and simply asked him to go to Surtaram. Ramdeva has of course stated that Durgaram had told him about the conspiracy, but in view of Durgarams own statement, no weight can be given to what Ramdeva has stated. After informing Ramdeva that he is wanted by Surtaram, Durgaram had stayed at the shop of Dhanraj. There also he did not tell anybody as what he had heard and what for Ramdeva had been called by Surtaram. 21. After informing Ramdeva that he is wanted by Surtaram, Durgaram had stayed at the shop of Dhanraj. There also he did not tell anybody as what he had heard and what for Ramdeva had been called by Surtaram. 21. The contention of the learned Public Prosecutor, that because of Surtaram taking the matter lightly and telling that nobody kills like that, Durgaram also might not have taken the matter seriously so as to narrate it before anybody may have some force, but the question still remains as to whether in the natural course of events, a person having knowledge of the conspiracy to commit a crime would remain quiet even after the commission of the crime in pursuance of that conspiracy when he also happens to be an eye-witness for the same. Durgaram was present at the site when a number of persons of the locality assembled there. He did not tell anybody at the site as to what had happened prior to the murder. Despite his accompanying injured Surtaram to the hospital he did not tell anybody in the way or thereafter about what he had heard a few hours prior to the incident. This abnormal and unnatural conduct of the witness deserves serious consideration. 22. The statement of Durgaram according to him was recorded on 13-8-79 at 5.00 P. M., according to S. H O. Swaroop Singh this witness was examined on that date at about 8.00 A. M. in the morning. Be it as it may, this is certain that this important witnesses who also professed to be an eye witness to the actual incident of the murder of the Surtaram was not interrogated till the third day of the occurrence. Had it been the case of the prosecution that the witness was not available, this delay would have been of no consequence, but from the statement of Durgaram it is evident that he was present there in the village all these three days and had occasion to talk with the S.H.O. event at the earlier part of the investigation on 11-8-79 when the S.H.O inspected the site. 23. 23. It is not in all cases that delay in examining the witness is fatal to the prosecution case but when there is vague evidence about a particular fact and the investigating agencies do not care to interrogate the material witness at the earliest, in order to bring the truth on record, it is open to the defence to doubt the veracity of such witness. 24. The question about the delay in recording the statement of important witness and its effect on the prosecution case came up for consideration before their Lordship of the Supreme Court in the case of Ganesh Bhavan Patel and another v. State of Maharashtra, A.I.R. 1979 S.C. 135 and their Lordship were pleased to propound the following principle of law : "Delay of few hours, simplicitor, in recording the statements, of eye-witnesses may not, by itself, amount to a serious infirmity in the prosecution cases. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marketing time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. Thus under the facts and circumstances of the case delay in recording the statements of the material witnesses, casts a doubt of suspicion on the credibility of the enters warp and weef of the prosecution story. 25. The argument of the learned Public Prosecutor that the investigating officer being busy in inspecting the site and getting the post-mortem examination of the dead bodies conducted might not have time to examine Durgaram upto 13-8-79 has no force. The post mortem examination of the dead bodies was conducted on 11th itself. A.S.I. was there to help the S.H.O. The witnesses of the murders were examined on 12th. This being so there was no reasonable excuse for not examining Durgaram, on whom the prosecution case about criminal conspiracy was resting and w ho was also an eye-witness to the murder of Surtaram, on 11th itself or at least on 12th. In the case just referred to above, their Lordship were pleased to further observe that Normally, in case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses. 26. In the case just referred to above, their Lordship were pleased to further observe that Normally, in case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses. 26. This delay in examining Durgaram, the only witness to the alleged conspiracy for which Chainaram is charged with becomes all the more important in view of the conduct of this witness. As stated earlier according his own version he had not stated this fact to anybody except Surtaram till 1-8-79 when his statement was recorded. He being a literate man and a teacher, it was expected of him to go to the police station after reaching Ladnu. There was no justification for him remaining quiet till the arrival of the Sarpanch. Assuming for the sake of argument that he might have thought it proper for the Sarpanch to set the investigating agencies into motion by filing the report, still when the police reached the hospital in the morning and the witness was present there he should have appraised the Sub-Inspector about the criminal conspiracy in order to facilitate the line of investigation, the S. H. O. was to pursue. Even if that was not done by him, still when he reached the village and the Investigating Officer went to the site for Site Inspection, the witness should have disclosed this fact to the S. H. O. A very important factor casting doubt on the truthfulness of the evidence of this witness concerning criminal conspiracy is his not pointing out the place wherefrom heard the talk of Chainaram and other appellants in the night of the occurrence. It is pertinent to note that the witness has stated that when the police reached for site inspection, he pointed out the place in his house where he was at the time prior to his going to the place of occurrence that is Surtaram's house, but did not point out that place where he was sitting at the time of hearing the talk of Chainaram and other regarding the conspiracy. If the Investigating Officer known from Durgaram himself on 11th itself that he had gone to the site at the time of occurrence then there could not be any reason for not interrogating him on the same day. If the Investigating Officer known from Durgaram himself on 11th itself that he had gone to the site at the time of occurrence then there could not be any reason for not interrogating him on the same day. This being the state of affairs we find force in the argument of the learned counsel for the appellants that this omission on the part of the witness to point out the place in his house, wherefrom he heard the talk regarding criminal conspiracy leads to the inference that it is an after thought and the investigating agencies might have taken two days to think out what the line of investigation should be, and to introduce evidence relating to various allegations. This type of unnatural conduct of Durgaram, coupled with the fact of the inordinate unexplained delay in recording his statement by the police, is in our opinion, sufficient to doubt the truthfulness of his statement. As the charge of criminal conspiracy cannot be held to be sustained on the testimony of this solitary witness we shall have to look for some corroborating evidence to lend support to this weak evidence of Durgaram. 27. The indirect evidence regarding the charge of criminal conspiracy is that of Ramdeva (P.W. 10). The prosecution case, as stated earlier, is that on being informed of the plan of the appellants, Durgaram informed Surtaram and the latter while taking the matter lightly asked Durgaram to call Ramdeva. As we have observed above, Durgaram has stated that he did not tell Ramdeva the purpose of Surtaram calling him. Ramdeva has, on the other hand, stated that he was told by Durgaram that he had been called by Surtaram because there was something about killing him. In view of the statement of Durgaram we do not place any reliance to this part of the deposition of Ramdeva. Ramdeva on reaching to the house of Surtaram was informed by the latter that Durgaram had informed him that Gyana, Sohana, As a, Kheraj and Chainaram had an idea to pick up quarrel. The details given by Durgaram regarding criminal conspiracy, do not find place in the statement of Ramdeva. Apart from it, as mentioned by Mr. Singhvi, Ramdeva evidence is hear say because he had himself not heard the talk relating to criminal conspiracy, rather what little he could know was through Surtaram, who himself had known it through Durgaram. 28. The details given by Durgaram regarding criminal conspiracy, do not find place in the statement of Ramdeva. Apart from it, as mentioned by Mr. Singhvi, Ramdeva evidence is hear say because he had himself not heard the talk relating to criminal conspiracy, rather what little he could know was through Surtaram, who himself had known it through Durgaram. 28. The learned Public Prosecutor does not dispute this position of law that Ramdeva's statement as such would fall within the definition of hear say evidence but he has tried to convince us about the admissibility of the statement of this witness on the ground that what Surtaram has told the witness should be taken to be the dying declaration of Surtaram and, therefore, Ramdeva's version should be taken into consideration. 29. We find ourselves unable to subscribe to this proposition because even if prosecution case is believed, Surtaram might at the most belabouring only an apprehension of some quarrel and the incident had not actually taken place. There was quite a long gap between the alleged talk between the witness and Surtaram and the commission of the Crime, according to Ramdeva, he at the instance of Surtaram, had gone to the Dhani of Kherajram, had a talk and was told by Kherajram that they had no idea of any quarrel. When a person in a state of apprehension of death on account of his physical condition, injuries etc. tells some thing, then in the event of that person meeting his death, his version, as reproduced by listeners or reduced into writing falls within the definition of dying declaration and is admissible in evidence under Section 32(1) of the Evidence Act. In the present case what Surtaram is said to have told to Ramdeva was not at the time the incident had taken place or subsequent to it. There being no apprehension of Surtaram meting his death at the time, the evidence of Ramdeva is definitely hear say and, cannot be pressed into service to corroborate the evidence of Durgaram. 30. A very important fact throwing doubt on the whole story of Durgaram going to Surtaram of his own accord to inform about the conspiracy of the appellants comes in the Statemeni of Smt. Nogi. She has stated that Durgaram master was called by her husband and so also Ramdeva Kumhar. 31. 30. A very important fact throwing doubt on the whole story of Durgaram going to Surtaram of his own accord to inform about the conspiracy of the appellants comes in the Statemeni of Smt. Nogi. She has stated that Durgaram master was called by her husband and so also Ramdeva Kumhar. 31. From the above discussion, we have no hesitation to tell that prosecution has miserably failed to establish the factum of criminal conspiracy and, there fore the charge against Chainaram for the offence cannot be said to be substantiated. 32. The prosecution story about the murder of Surtaram unfolds with the allegation of criminal conspiracy against the five appellants. We have already discussed that part of the prosecution case and have discarded the evidence regarding the criminal conspiracy. Now, therefore, in order to find out what would have motivated the four appellants namely; Sohanaram, Gyanaram, Assaram and Kherajram to commit the murder of Surtaram, the statements of wife and Mali of Surtaram are to be examined. According to Shri Ramram there was enmity between Surtaram and the accused in connection with a wall. Another reason for enmity pointed out by the witness was on account of Annaram, nephew of Surtaram molesting the wife of Asaram. Smt. Noji has also referred to the quarrel on account of Annaram entering the house of Ashu and the accused having hatched enmity with Surta because of Annaram being his nephew. She has also stated that two or three months prior to the occurrence they have constructed a room and the accused had resisted. Ganesharam (P. W 2) another nephew of Surtaram and brother of Annaram has also stated about Annaram molesting Asarams wife and Surtaram siding Annaram. Bakaharam (P. W. 5), brother of Magaharam another victim, has also given similar version. 33. Mr. Singhvi has contended that if there would have been any wrath because of Annaram molesting the wife of Asaram, then Annaram, must have been the victim and not Surtaram. It has also been urged that petty matters like the appellants telling Surtaram that they would not permit him to construct the room and the strained relations on account of Annarams affairs would not have led to such a crime. 34. Meeting out this argument, Mr. It has also been urged that petty matters like the appellants telling Surtaram that they would not permit him to construct the room and the strained relations on account of Annarams affairs would not have led to such a crime. 34. Meeting out this argument, Mr. Calla submitted that the appellants after committing the murder of Surtaram had cried that they had to hang five corpses on the bamboo tree that night and it may be inferred that Annaram might be one of the targets. 35. That is correct that the evidence about any serious enmity between Surtaram and the appellants is not on record, still this much is definite that the relations between them were strained. It is only after evaluating the evidence and circumstances of the case that it can be concluded as to whether the strained relations would have motivated the appellants to commit the murder of Surtaram. 36. Shri Ramaram, Smt. Noji and Durgaram have been examined as eye-witness to the actual occurrence. All these three witnesses have stated about their attention being drawn on hearing shouting of the accused party Aaj Dushman Ko Mario Dushman ko Khatam Kar Do. Mr. Singhvi submitted that this part of the prosecution case is not at all worth consideration because if the appellants had chosen to commit the crime in that late hour of the night, they would not have given this vide publicity to the crime they were going to commit so as to attract the witnesses and create evidence against them. This is true that this conduct of the appellants does not appear to be natural but cases are not rare in which the appellants in order to boast their brevity raise an alarm prior to the commencement of the crime. This fact of the assailants shouting prior to the assault is important only for ascertaining as to when actually the eye-witnesses had reached near the victim or what they could see the assault from its very beginning. 37. We have discussed in detail the evidence of Durgaram while dealing with the charge of criminal conspiracy against Chainaram and have also dealt with the various infirmities in his statement, his un-natural conduct for keeping quiet for a long time and the unexplained delay on the part of the investigation agencies in not recording his statement for three days. 37. We have discussed in detail the evidence of Durgaram while dealing with the charge of criminal conspiracy against Chainaram and have also dealt with the various infirmities in his statement, his un-natural conduct for keeping quiet for a long time and the unexplained delay on the part of the investigation agencies in not recording his statement for three days. For this reason we felt persuaded not to base the conviction of Chainaram on the testimony of Durgaram in absence of any supporting evidence. The reasons un-numerated in that concern also, hold good for the evidence of Durgaram regarding the incident of murder of Surtaram, Though there was some carelessness on the part of the prosecution not to examine other eye-witnesses also on 11th but they were atleast examined on 12th. Had Durgaram been an eye-witness to the incident there was no reason for his not being examined by the police along with other eye-witnesses, despite his being present in the village on 11th as well as on 12th. The unnatural conduct of the witness in not disclosing the fact of criminal conspiracy till 13th also casts doubt on his truthfulness for the remaining part of his evidence even. Apart from it, the statement of Noji that Durgaram had reached there on hearing the shriek of her husband falsifies the version of Durgaram that he had reached the site prior to the commencement of the assault and had seen the first blow by Sohanaram on the head of Surtaram. We are, therefore, hesitant to place much reliance on the testimony of Durgaram. 38. Shri Ramram and Mst. Noji being Hali and wife of Surtaram respectively, were naturally there in the house and their statement inspire confidence when they state that they had seen Surtaram being assaulted. Though the evidence of these witnesses regarding the first blow given by Sohanaram is not believable for the reason that Mst. Noji had opened the door on hearing the shriek of Surtaram which is said to have been made on sustaining Gandasi blow by Sohanaram and Mst. Noji has stated about Shri Ramaram coming out thereafter. Though the evidence of these witnesses regarding the first blow given by Sohanaram is not believable for the reason that Mst. Noji had opened the door on hearing the shriek of Surtaram which is said to have been made on sustaining Gandasi blow by Sohanaram and Mst. Noji has stated about Shri Ramaram coming out thereafter. Shri Ramaram has stated that on hearing the noise of the appellants he had come out on the Chabutari an had seen the assaults but his statement upto the extent of bis coming out prior to the commencement of the blows stands falsified by the version given by Smt. Noji Be it as it may, the statements of these two witnesses taken as a whole do substaon tiate the prosecution case that they had seen Surtaram being given blows by the appellants or atleast some of them. 39. Mr. Singhvi had attacked the veracity of the statements of Shri Ramaram and Smt. Noji on the ground that they being `hali' and `wife' of Surtaram were interested witnesses and their evidence cannot be made the basis of conviction in absence of independent corroboration. 40. Related and interested witnesses need not be disbelieved if their presence at the time of occurrence is natural and their statements taken as a whole inspire confidence. Their evidence may be seen with suspicion only when it be informed that they were professing to be the eye-witnesses simply in order implicate the accused. In the case of State of Rajasthan v. Smt. Kalki and another, A.I.R. 1981 S.C. 1390 the widow of the deceased alone was present in the hut with the deceased at time of occurrence. She was believed for the reason that she had no interest protecting the actual culprit and falsely implicating the accused. Shri Ramaram though a servant of Surtaram cannot be branded as a her in view of his natural presence in the house of Surtaram in the fateful night. 41. The learned counsel for the appellants has drawn our attention to certain discrepancies in the statements of these two witnesses but that does not help him because such discrepancies on petty points are bound to occur in the deposition of truthful witnesses and they cannot be expected to give a parrot like story. 42. The pertinent question raised by Mr. The learned counsel for the appellants has drawn our attention to certain discrepancies in the statements of these two witnesses but that does not help him because such discrepancies on petty points are bound to occur in the deposition of truthful witnesses and they cannot be expected to give a parrot like story. 42. The pertinent question raised by Mr. Singhvi is whether the evidence of the eye-witnesses should be considered sufficient to hold all the four alleged assailants guilty despite the medical evidence on record exonerating Kherajram of the allegation levelled against him. 43. The witnesses have stated about the Kherajram being armed with Jai and giving blow to Surtaram with that weapon. It has been stated by the two witnesses that all the four accused were inflicting a number of blows in quick succession to Surtaram. They had used the term Bhhada Bhhad Mar Rahe The. It is important to note that nose of the injuries sustained by Surtaram was caused by blunt object. Jai Article-4 said to have been recovered in pursuance of the information furnished by Kherajram and at his instance, was shown to Doctor Phutar Mal Jain. He has clearly stated that none of the injuries of Surtaram was sustained by Jai Article 4. Thus in view of the conflict between the oral evidence and the medical evidence specially when the medical evidence is very specified, it is definite that Kherajram did not cause any injury to Surtaram. 44. The next question emerging for answer is whether the medical evidence falsifying the statements of the eye-witnesses would lead to the inference that there is over implication and exaggeration in the prosecution case so far as the Kherajram is concerned. 45. In the case of the State of Uttar Pradesh v. Ram Autar and others, 1971 S.C. (U.J.) 406 there was allegation about two of the nine assailants being armed with spears. The finding of the High Court was, that, if the assailants had spears, they would have used these weapons. On the facts, the High Court had hold that those two persons were falsely implicated. For that reason the witnesses who speak about their presence were not believed. The Supreme Court, therefore, dismissed the appeal against the Judgement of acquittal passed by the High Court. 46. On the facts, the High Court had hold that those two persons were falsely implicated. For that reason the witnesses who speak about their presence were not believed. The Supreme Court, therefore, dismissed the appeal against the Judgement of acquittal passed by the High Court. 46. In the present case we find no reason to prefer the oral evidence to the medical evidence of the Doctor that there was no injury caused by Jai Ex. 4 and are inclined to observe that the prosecution case about Kherajram participating in the crime and using Jai in causing injuries to Surtaran is demolished by medical evidence. 47. The point now remaining for consideration is whether in the absence of any injury caused by Kherajram, there is material to justify his conviction for the offence of murder of Surtaram with the help of Section 34 I. P. C. 48. Mr. Singhvi has submitted that Kherajram an old man of 70 years not even physically fit to wield a Jai, has been falsely implicated. Mr. Calla, on the other hand, has contended that taking the evidence of Doctor to be true all that can be said is that Kherajram might not have caused any injury and the witnesses might have mistaken in ascribing injuries and to him also, but that would not end the matter. According to Mr. Calla, Kherajram happens to be the father of the three other assailants and his coming with his three sons with the intention to see that the enemy is done away with is not unnatural. Another point advanced by Mr. Calla is that apart from the statement of the eye-witnesses, there is evidence of Bhagirathram that Kherjram was seen going from towards the house of Surtaram immediately after the incident. 49. The effort of the eye-witnesses Shri Ramaram and Noji to involve Kherajram to such an extent as to ascribe him also the blows to Srutaram leads us to the conclusion that these witnesses were over enthusiastic and implicating the old man also alongwith other assailants. So far as Bhagirathram is concerned, he is specific about his seeing Sohanaram tut regarding the other three namely : Gyana Ram, Asaram and Kherajram, he has admitted that he had only seen back side of three persons. It is pertinent to note that this witness was examined by the police as late as on 22nd August, 1979. So far as Bhagirathram is concerned, he is specific about his seeing Sohanaram tut regarding the other three namely : Gyana Ram, Asaram and Kherajram, he has admitted that he had only seen back side of three persons. It is pertinent to note that this witness was examined by the police as late as on 22nd August, 1979. There is no explanation for this inordinate delay in examining the witness This fact taken together with the interestedness of the witness to Surtaram for the reasons that Surtaram's mother had gone as a wife to his father, minimises the value of what the witness has stated. 50. Mr. Calla submitted that two dying declarations by Surtaram, one f Malooram and other to Bhagirathram include the name of Kherajram amongst the assailants and there is nothing to disbelieve that part of the prosecution case. 51. Malooram (P. W. 9) has stated that on interrogation Surtaram injured had told him that Sohanaram, Gynaram, Asaram and Kherajram had cut him with Gandasi, Farsi and Kuwari (axe). There is no reference about any blow by `Jai' or even Kherajram having a Jai with him. Mst. Noji has stated about her husband telling Malooram about Sohana, Asha, Gyana and Kheraj causing injuries to him and running away but has not stated about her husband stating about weapons used by anyone of these. Bhagirathram stated that the First Information Report taken by Udaram to the hospital was written at the instance of Malooram. On this version Mr. Singhvi built up the argument that, had there been any dying declaration before Malooram that would have found place in the F.I.R. written at his instance and this omission of the dying declaration is sufficient to doubt the truthfulness of Malooram regarding anything being told to him by Surtaram. 52. Mr. Calla referred to the case of Shankar v. State of U.P., A.I.R. 1976 S.C. 757 and insisted upon the limited purpose of the F. I. R. He urged that as Udaram could not be examined, any omission in the F. I. R. cannot be taken note by the Court. Mr. 52. Mr. Calla referred to the case of Shankar v. State of U.P., A.I.R. 1976 S.C. 757 and insisted upon the limited purpose of the F. I. R. He urged that as Udaram could not be examined, any omission in the F. I. R. cannot be taken note by the Court. Mr. Singhvi placed reliance on the observation in the case of Ram Kumar Pande v. The State of Madhya Pradesh, A.I.R. 1975 S.C. 1026 , wherein their Lordships have been pleased to observe as under : "No doubt an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But omission of important facts, affecting the probabilities of the case are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. No question has been put to Malooram (P. W. 9) regarding the F. I. R. being written at his instance and, therefore, the omission even if any, will not carry importance in the case. At the same time there are certain important factors weakening this part of the prosecution story. Mst. Noji has not supported Maloo Ram regarding Surtaram stating about the weapons used by the assailants. Malooram (P. W. 9) himself has not stated that Surtaram had told him about Kherajram having Jai or using the same. Shri Ramaram present throughout has not stated anything about such a talk by Surtaram before Malooram. In this state of affairs we are not inclined to attach any importance to this dying declaration before Moolram so as to use it as a piece of evidence against Kherajram. 53. The oral dying declaration before Bhagirathram stands on a still weaker footing. Neither Shri Ramaram nor Smt. Noji have stated about Surtaram telling anything to Bhagirathram. According to these witnesses Bhagirathram had reached near Surtaram prior to Malooram and had Surtaram told anything to Bhagirathram that would not have missed the attention of Shri Ramaram and Mst. Noji we have already discussed the delay in recording his statement by the police and his being interested in Surtaram, we therefore, do not attach any importance to what this witness had stated. Apart from it, the witness has only stated about Surtaram telling him that he was given a beating by Sohana, Asha, Gyana and Kheraj and had not stated about the weapons they used. Apart from it, the witness has only stated about Surtaram telling him that he was given a beating by Sohana, Asha, Gyana and Kheraj and had not stated about the weapons they used. The story of Kheraj giving a beating has been demolished by the medical evidence as observed above. 54. The above discussion leads to the conclusion that the prosecution could not succeed in bringing home the suit against Kherajram beyond and the realm of reasonable doubt so far as the murder of Surtaram is concerned. 55. The case against accused appellants Sohanaram, Gyanaram and Asaram regarding the murder of Surtaram stands on a different footing than that of Kherajram. The two eye-witnesses to the occurrence namely, Shri Ramaram (P.W. 1) and Smt. Noji (P.W. 3) have named these three appellants as the assailants and have also stated about Sohanaram being armed with Gandasi, Gyanaram with Farsi and Asaram with an Axe and using these weapons in causing injuries to Surtaram. The evidence of the witnesses about the weapons used in committing the crime stands supported by the evidence of Dr. Phutarmal Jain (P. W. 16) who has stated that the injuries of Surtaram could be sustained by Gandasi, Farsi and Axe shown to the witness at the trial As we could discuss later, the three weapons said to have been recovered from these three appellants were found stained with blood but only Farsi was found positive for human blood. In this view of the matter, the two weapons are exhibit 3 and Gandasi Exhibit 1 cannot definitely be said to be the weapons as used in the incident but this much can be said that the nature of the injuries sustained by Shri Surtaram denoted that sharp edged weapons like Gandasi, Axe and Farsi could have caused those injuries. The reason for our disbelieving these two witnesses so far as Kherajram is concerned is that whereas they had stated about his using Jai in causing injuries to Surtaram the medical evidence was specific on the point that none of the injuries sustained by Surtaram could have been caused by Jai. The reason for our disbelieving these two witnesses so far as Kherajram is concerned is that whereas they had stated about his using Jai in causing injuries to Surtaram the medical evidence was specific on the point that none of the injuries sustained by Surtaram could have been caused by Jai. The learned counsel for the appellants forcefully contended that these two witnesses being interested in Surtaram being his Hali and Wife should not be believed even for the appellants Sohanaram, Gyanaram and Asaram, because, if they could falsely implicate Kherjaraam, there was possibility of their doing so for the three other appellants also. When an offence is committed at the dead of night, the residents of the house would ordinarily be present and in a position of seeing the incident. Hence merely because the inhabitants of the house are relatives or interested in the deceased as in some cases inimical to the accused, their testimony need not be discarded on that count alone. All that is required in such cases is careful scrutiny and assessment of their evidence. The evidence of these witnesses, of course suffers from a trend of over implication as noted while discussing their evidence against Kherajram, but that alone was not the reason for disbelieving the prosecution case against that appellant. We had also in view that fact that there was no corroborative circumstances against him. The statement of these two witnesses taken as a whole do inspire confidence so far as the three appellants Sohanaram, Gyanaram and Asaram are concerned and, therefore, this is not a case in which the maxim Falsus in Uno, Falsus in omnibus may be applied. In the case of Ugar Ahir and others v. the State of Bihar, A.I.R. 1965 S.C. 277 , their Lordships, while discussing the implications of this Maxim were pleased to observe that this Maxim is neither sound rule of law nor a rule of practice. It was further held by their Lordship that hardly one comes across a witness whose evidence does not contain, a grain of untruth or at any rate exaggerations, embroideries or embellishments. Their Lordships emphasised the duty of the court to scrutinise the evidence carefully in order to separate the grain from the chaff. 56. It was further held by their Lordship that hardly one comes across a witness whose evidence does not contain, a grain of untruth or at any rate exaggerations, embroideries or embellishments. Their Lordships emphasised the duty of the court to scrutinise the evidence carefully in order to separate the grain from the chaff. 56. Gandasi, article 1 was recovered at the instance of appellant Sohanaram in pursuance of the information furnished by him, but the same not being found positive for human blood, we do not attach importance to that circumstance against him. There are however other incriminating circumstances established against him. The Shirt and Dhoti he was wearing at the time of arrest were stained with blood and the Serologist had found them positive for human blood, another circumstance against appellant Sohanaram is his being seen by Bhagirathram (P. W. 15) passing from inside his house immediately after the occurrence when the witness was going to the site. 57. So far as Gyanaram is concerned, the Farsi Exhibit 2 was recovered vide memo Ex. P. 8 in pursuance of the information Ex. P. 30 furnished by him, According to the report of the Serologist Ex. P. 34, Farsi was stained with human blood. This recovery of weapon of offence is thus a strong circumstance against Gyanaram. 58. Exhibit 3 is said to have been recovered in pursuance of the information furnished by appellant Asaram but has not found positive for human blood. This recovery does not help the prosecution against him. Despite this, the reliable evidence of the two eye-witnesses to the murder of Surtaram regarding the part played by Asaram coupled with the fact that he was the person who was mainly aggrieved with Surtaram because of the latter siding bis nephew Annaram who is said to have molested the wife of this appellant Asaram. We have therefore every reason to hold that the prosecution case against Asaram connecting him with the commission of the crime of murder of Surtaram stands established.In view of the above discussion, the conviction of Sohanaram, Gyanaram, and Asaram for the offence under Section 307/34 I. P. C. for the murder of Surtaram is fully justified, 59. Coming to the murder of Magharam, prosecution has examined Ganeshram (P. W. 2) and Baksharam (P. W. 5) as the eye-witnesses to the occurrence. Coming to the murder of Magharam, prosecution has examined Ganeshram (P. W. 2) and Baksharam (P. W. 5) as the eye-witnesses to the occurrence. These two eye-witnesses have deposed that Baksharam alongwith his brother, deceased Magharam was standing outside the Dhani of the deceased, late in the night when Ganesharam (P. W. 2) passed that way while going from his Dhani to village Baldu. Magharam had a talk with Ganeshram and both of them proceeded towards the village. The two eye-witnesses stayed a few paundas behind to make water and saw the appellants Kherajram, Sohanaram, Gyanaram and Asaram armed with Jai, Gandasi, Farsi and Axe respectively and causing injuries to Magharam with the weapons they had with them. Both the witnesses have stated about their taking to heels while the beating was still on. Learned counsel for the appellants has assailed the truthfulness of the statements of these witnesses on a number of grounds, such as their interest in the prosecution because of their being near relations of the two victims of the night and their being inimical to the accused and their unnatural conduct subsequent to the occurrence. 60. Ganesharam admittedly was not residing near about the site of occurrence. His dhani was at a distance of half mile from there. As his statement goes was passing that way while going from his dhani to the village to have some Bajari.The witness Ganesharam stated the time as Karib Dai Gadi Chand Chad Gya Tha'. The approximate time being after 11 P.M. His attention was drawn to his police statement Ex.D. 1 where the reason for his going to village at that late hour of the night is missing. The only explanation given by the witness for that omission is that he had so stated and the police has not recorded the same. A witness need not always by disbelieved merely on the ground of being a chance witness. But this fact carried importance in the present case where Ganeshram happens to be the real nephew of deceased Surtaram, whose murder was committed in that night and had inimical relations with the appellants. We may also observe that Annaram against whom there was allegation of molesting the wife of Asaram two or three days prior to the incident happens to be the real brother of this witness Ganeshram. We may also observe that Annaram against whom there was allegation of molesting the wife of Asaram two or three days prior to the incident happens to be the real brother of this witness Ganeshram. In this state of affairs Ganeshram does not only suffer from the weakness of being a chance witness, rather also falls in the category of a person interested in the deceased and inimical to the accused partly. This fact couples with the unnatural conduct of the witness, which we would just discuss, throws doubt on the credibility of his evidence.Another eye-witness examined by the prosecution is Raksharam (P.W 5). He happens to be the real brother of deceased Magharam. He has corroborated Ganeshram on the point that when the witness and his brother Magharam were talking outside the dhani and Three Gadi night has passed Ganeshram passed that way and Magharam having a talk with Ganeshram accompanied him to the village. 61. Ganeshram being the nephew of Surtaram and Baksharam brother of Magharam another victim, were naturally interested in the prosecution. The prosecution case is that Surtaram and Magharam were siding Annaram in the matter of his molesting Asarams wife. If it was so then Mr. Singhvi's argument about the witnesses being inimical to the appellants deserves consideration. In order to ascertain the truthfulness of these chance and related witnesses, who also fall in the category interested, inimical, partison witnesses, the various checks available on the record will have to be carefully examined. 62. This is evident that the family of deceased Magharam was there at his Dhani and Mr. Singhvi's argument that apparently there was no reason for the deceased sleeping in the village, has some force. Baksharam (P. W. 5) has tried to give reason for this by stating that during those days Durga Master was residing in the house of Surta and, therefore, Ragharam used to go to sleep at the village house. Durgaram has clearly stated that during those days he was a tenant in the house of Kaumaram Jat. Kaumaram Jat happens to be the father of Magharam. Ganeshram has even gone to the extent that Durgaram was the tenant of their village house two or three years prior to the occurrence. Durgaram has clearly stated that during those days he was a tenant in the house of Kaumaram Jat. Kaumaram Jat happens to be the father of Magharam. Ganeshram has even gone to the extent that Durgaram was the tenant of their village house two or three years prior to the occurrence. It so appears that Baksharam had given this type of false statement in order to explain the reason of Magharam being there on the road in the mid night. 63. Assuming arugande that these two witnesses were there at the place they professed to be, the pediment question emerging for answer is whether they were in a position to see what had happened to Magharam and at whose hands. Both these witnesses have stated that at the time of the start of the assault they were in a sitting pose, making water. Both of them have given different versions regarding the distance between them and Magharam at that time. Mr. Singhvi referred to the statement of Baksharam to point out that the differences was somuch that even if the witnesses would have been there it would not have been possible for them to see what was happening where Magharam was, specially when there was a hedge upto the waist in between. In his deposition at the trial, Baksharam has stated that Magharam was at a distance of 15 poundas from him at the time and Ganeshram at a distance of 5 paundas from him. Attention of the witness was drawn to his police statement Ex. D. 3, where he has deposed that Gsneshram was making water at a distance of 10-15 paundas from the witness. The witness disowned that statement and deposed that he had stated about 5 paundas. The witness then admitted that distance between Ganeshram and Magha ram at the time of the start of the beating was 10-20 paundas. Even if this version in the Court is taken to be true, the distance between Ganeshram and Maghrams comes to about 100 ft. and not less than 25 feet between Ganesha Ram and Baksharam. Thus the distance between Baksharam and Magharam comes to about 125 ft. Dr. Hansgross in his treaties on criminal investigation has given some approximate indications regarding the power of vision of a person. and not less than 25 feet between Ganesha Ram and Baksharam. Thus the distance between Baksharam and Magharam comes to about 125 ft. Dr. Hansgross in his treaties on criminal investigation has given some approximate indications regarding the power of vision of a person. According to the learned Author by moonlight one can recognise, when the moon is at the quarter, person at a distance of from twenty one feet in bright moonlight at from twenty three to thirty three feet, and at the very brightest period of the full moon, at a distance of thirty three to thirty six feet. In tropical countries the distance for moonlight may be increased. 64. There is no material regarding the position of the moon at the time. This is correct that these indications are approximate even according to the learned Author and in practice they are of but slight value as much depends upon the age and the vision and power of observation of the person. Despite of that we have no hesitation in observing that the witnesses cannot be believed when they have stated about the weapons with the assailants and the part of the body of the victim where the assailants have caused injuries.. For the person seeing the occurrence from a long distance in the dead of night, it is impossible to give the meticulous account of the nature and the numbers of injuries caused and the blows indicted. The exaggerative statements of the witnesses is evident from the fact that they have stated about the Jai being placed on the neck by Kherajram and Sohanaram pressing the same. At these juncture, we may observe; that the witnesses were examined on the day next to the police reaching the village. Mr. M.M. Singhvi has vehemently argued that in order to fit in the oscular evidence with the medical evidence this fact has been introduced through these witnesses on the day next to the post-mortem examination of the dead body of Magharam. The witnesses one of whom was real brother of the deceased having not be been examined on the next day of the occurrence and neither of them pointing out the place of occurrence at the time of the site inspection by the Investigating Officer, also creates a doubt regarding their seeing the actual occurrence. 65. The witnesses one of whom was real brother of the deceased having not be been examined on the next day of the occurrence and neither of them pointing out the place of occurrence at the time of the site inspection by the Investigating Officer, also creates a doubt regarding their seeing the actual occurrence. 65. Both these witnesses have stated that they did not raise any cry at the time. Pertinent it is to note that the Dhanis of Baksharam and Magharam were nearby. Their family members were there. The Dhani of Narain Ram was only at a distance of 20 paundas. Ganesharam is said to have passed from outside that Dhani after jumping the hedge. If that was so then in the natural course of events these two witnesses would have either gone to the rescue of Magharam and even if they would not have dared to do so, they would have raised the cry to attract Narain Ram and other inhabitants of the neighbouring Dhanies. 66. Apart from this unnatural conduct of the witnesses, not to raise cry there at the site or while running away from there, their subsequent conduct after reaching the house of Surtaram was also questionable. 67. Both of them have stated they had gone to the house of Surtaram and remained there for the whole night. Ganesharam (P.W. 2) being the nephew Surtaram might have stayed there, but there appears to be no reasonable excuse for Baksharam (P.W. 5) to remain there throughout the night knowing it that his real brother Magharam had been dealt with in such a way by the assailant. He had not even gone to his father Khumaram (P.W. 19) whose house was nearby to inform as to what had happened to Magharam. In the natural course of event he should have gone to the Dhani of Magharam and informed about the fat Magharam had met. The learned Public Prosecutor tried to justify the conduct these two witnesses in remaining there without informing the family members of Magharam on the ground that they might have felt afraid of the assailants. The argument has no force. There were so many persons present at the house Surtaram and if the prosecution story is believed, the Sarpanch was also there and therefore, there was no question of the witnesses not caring to go anywhere throughout the night. 68. The argument has no force. There were so many persons present at the house Surtaram and if the prosecution story is believed, the Sarpanch was also there and therefore, there was no question of the witnesses not caring to go anywhere throughout the night. 68. The learned Public Prosecutor has laid much emphasis on the fact that it was on the information of Baksharam immediately after the occurrence the Udaram Sarpanch came to know about the murder of Magharam and had mentioned that fact in the First Information Report. Udaram Sarpanch having sit died, could not be examined at the trial and the defence could have the opportunity to confront or contradict him with the contents of the First Information Report. Whether Sarpanch told Udaram, prior to his leaving the village could know that Magharam had succumbed to the injuries sustained by him is also not evident from record. Baksharam (P.W. 5) has stated that Sarpanch was there at the house of Surtaram and when he told him about the beating to Magharam, Sarpanch him not to go there in the night and that they will go there in the morning. This shows that neither the Sarpanch nor any other person had gone in the night to ascertain as to what exactly the condition of Magharam was. The Sarpanch according to the prosecution had left the village immediately thereafter. Ganeshram (P.W. 2) and Baksharam (P.W. 5) at their own statements go, were at a good distance from the place of occurrence and had left the place when the beating was still going on. They, therefore, could not be sure about the Magharam having actually died on account of the injuries. Here again at the verge of repitition, we would like to observe that the conduct of these witnesses specially of Baksharam (P.W. 5) was most unnatural. It was expected of them to go there or send persons there to find out if Magharam was still alive. It was expected even of the Sarpanch, if he was actually told by Baksharam (P. W. 5) about the beating to go to the site and find out whether Magharam was still surviving and medical help could save him. Mr. It was expected of them to go there or send persons there to find out if Magharam was still alive. It was expected even of the Sarpanch, if he was actually told by Baksharam (P. W. 5) about the beating to go to the site and find out whether Magharam was still surviving and medical help could save him. Mr. Singhvi's argument is that this clearly shows that Baksharam (P. W. 5) and Ganesharam (P. W. 2) were not there at the time of the occurrence and on Magharam being found dead either in the night or in the morning by someone, these witnesses might have been introduced by the prosecution. He has also urged that as there was allegation against these four persons for the murder of Surtaram, it might have been taken for granted that the same party might have committed the murder of Magharam also and the investigation might have been conducted in that line. 69. Another point raised by Mr. Singhvi also throws doubt on the truthfulness of these two witnesses regarding their presence at the time of occurrence. They have nowhere stated that they were out of village on 11th when the site was inspected. The site was not inspected at their instance. The Investigating Officer is also silent on the point as to whether the witnesses pointed out the places where they were at the time of their seeing the occurrence. 70. These two witnesses have stated about the beating having taken place on the road outside, the hedge. According to (P. W. 17) Swaroop Singh, Investigating Officer, the dead body was found at a distance of 296 ft. from that place in the open place outside the Dhani of Kherajram. The learned Public Prosecutor has contended that the dead body might have been taken by the assailants to that place after the occurrence and the fact of its being found in the Bakal outside the Dhani of Kherajram strengthens the prosecution case that Kherajram and the other assailants were the perpetrators of the crime. The argument though attractive does not have much force. S.H.O. Swaroop Singh has stated about there being marks of throwing of the dead body from over the hedge and dragging in that area of 296 paundas and also there being clear foot prints of certain persons. The argument though attractive does not have much force. S.H.O. Swaroop Singh has stated about there being marks of throwing of the dead body from over the hedge and dragging in that area of 296 paundas and also there being clear foot prints of certain persons. If the foot prints were there, the Investigating Officer should have cared to take the moulds to establish who were the persons taking the dead body from outside the road to the place where it was found. Simply because of Dhani of Kherajram was there at some distance, it cannot be held that these might be his foot prints. Apart from it, the medical evidence regarding the injuries of Magharam weakens this part of the prosecution case based on surmises and conjectures. Dr. Phutarmal Jain (P. W. 16) has noted one lacerated and two incised wounds on the dead body and three bruises and swelling on the neck. Dimensions of these bruises are not of the type that it can be inferred that the victim must have been treated in the way prosecution alleges, for being taken to a distance of 296 ft. Mr. Singhvi's contention is that had it been so, there have been multiple injuries in the form of bruises, abrasions etc. on the person of Magharam. It is also noteworthy that a pair of chappals belonging to Magharam was found near the place where the dead body was lying. It appears strange that the assailants committing the crime on road would have created evidence against them by bringing the dead body in the open ground outside the Dhani of one of them and would have also taken care to bring the chappals of the victim to show that it was at that place that the incident bad taken place. We find force in the arguments of Mr. Singhvi's that all these circumstances throw doubt on the version given by the alleged eye-witnesses and the incident might not have taken place in the manner and at the place prosecution has alleged. 71. From the above discussion, we find ourselves unable to subscribe to the finding of the learned trial Judge that from the statement of these two eye-witnesses prosecution has succeeded in bringing home the guilt against the four appellants Kherajram, Sohanaram, Gyanaram and Asaram for the murder of Magharam. 72. 71. From the above discussion, we find ourselves unable to subscribe to the finding of the learned trial Judge that from the statement of these two eye-witnesses prosecution has succeeded in bringing home the guilt against the four appellants Kherajram, Sohanaram, Gyanaram and Asaram for the murder of Magharam. 72. The conclusion of the above discussion is that prosecution has only succeeded in proving the case against Sohanaram, Gyanaram and Asaram under Section 302 read with 34 I.P.C. for the murder of Surtaram and has failed to substantiate its case against Chainaram for the charge of conspiracy and Kherajram for the murder of Surtaram and case against Kherajram, Sohanaram, Gyanaram and Asaram for the murder of Magharam. 73. The learned trial Judge has awarded extreme penalty of death to appellants Sohanaram, Gyanaram and Asaram and has submitted the proceedings to this court for confirmation of death sentence. 74. The learned Public Prosecutor has vehemently argued that these persons have committed the heinous crime of murder on a petty matter of Anararm molesting the wife of Asaram and have used deadly weapons in commission of crime, selecting the dead hour of night, in order to avoid any possibility of any rescue to the victim and, therefore, sentence of death is the only adequate punishment for them. On the other hand, the learned counsel for the appellants has submitted that there exist no special reasons to award the extreme penalty. 75. The merciless act of a culprit bringing to an end the life of an innocent person is really shocking. All murders are repelling. The persons playing with the lives of others of course deserve no sympathy. But the humanitarian consideration for the loss of an innocent life will not always justify extreme penalty of death to the culprit. The present trend of legislation is to minimise death penalty that is to say, the sentence of death should not be invariably awarded in all cases of shocking murders. This trend found its expression in the provisions of Section 1 354(3) of the Code of Criminal Procedure, 1973. The term "special reasons" appearing in that Section was the subject-matter of discussion in number of cases before the highest court of the country. This trend found its expression in the provisions of Section 1 354(3) of the Code of Criminal Procedure, 1973. The term "special reasons" appearing in that Section was the subject-matter of discussion in number of cases before the highest court of the country. Their Lordships were pleased to discuss the principles enunciated in certain important cases on the point by the Supreme Court in the case of Bachan Singh v. The State of Punjab, A.I.R. 1980 S.C. 898 , and were pleased to observe as under:- "Section 354 (3) of the Code of Criminal Procedure, 1973, marks a significant shift in the legislative policy underlying the Code of 1898 as in the force immediately before April 1, 1974, according to which both the alternative sentence of death of imprisonment for life provided for murder and for certain other capital offences under the Penal Code, were normal sentences. Now, according to this changed legislative policy which is patent on the face of S. 354 (5), normal punishment for murder and six other capital offences under the Penal Code, is imprisonment for life (or imprisonment for a term of years) and death penalty is an exception. Their Lordships of course did not approve the majority view of (2:1) in the case of Rajendra Prasad v. State of U.P., A.I.R. 1979 S. C. 916 that the "special reasons" necessary for imposing death penalty "must relate not to the crime as such but to the criminal", but at the same time were pleased to lay down the following guidelines:- "As we read Section 354 (3) and 235 (2) and other related provisions of the Code of 1973, it is quite clear to use that for making the choice of punishment or for ascertaining the existence of absence of "Special reasons" in the context, the court must pay the due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors depends on the facts and circumstances of the particular case. More often than not, these two aspects are so inter wined that it is difficult to give a separate treatment to each of them. This is so because "style is the man". In many cases the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the deprived character of the perpetrator. More often than not, these two aspects are so inter wined that it is difficult to give a separate treatment to each of them. This is so because "style is the man". In many cases the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the deprived character of the perpetrator. That is why, it is not desirable to consider the circumstances of the criminal in two separate water tight compartments. In a sense; to kill is to be cruel and therefore, all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme deparabity that "special reasons" can legitimately be said to exist". With these guidelines in view, we have carefully examined the entire evidence and as assessed the circumstances of the case. The learned trial judge has held these appellants to be the authors of the two murders and that too in pursuance of Criminal conspiracy. Now with our fingers, the situation has changed. We have disbelieved the story of criminal conspiracy. We have not held the prosecution case established beyond reasonable doubt so far as the murder of Magharam is concerned. Hence the charge under Section 302 rests with Section 34 I. P. C. for the murder of Surtaram only remains against Sohanaram, Gyanram and Asaram. This is correct that deadly weapons like Gandasa, Farsa and Axe had been used in the commission of the crime but as the medical evidence shows, out of the seven injuries by sharp edged weapons, only one on the ribs was grievous in nature. In this view of the matter, we are inclined to hold that this is not a case to be categorised as a crime committed in a most brutal and drasty fashion calling for extreme penalty of death to the perpetrators of the crime. 76. Consequently, the appeals filed by Chaina Ram and Kheraj Ram are accepted and their conviction and sentences are set aside and they are acquitted of the charges levelled against them. 77. Appeals filed by Sohana Ram, Gyana Ram and Asa Ram are partly allowed. They are scquitted of the charges relating to the murder of Magharam and their conviction and sentences for the same are set aside. Their conviction under Section 302/34 I.P.C. regarding the murder of Surta Ram is however maintained. 77. Appeals filed by Sohana Ram, Gyana Ram and Asa Ram are partly allowed. They are scquitted of the charges relating to the murder of Magharam and their conviction and sentences for the same are set aside. Their conviction under Section 302/34 I.P.C. regarding the murder of Surta Ram is however maintained. In view of the above discussion regarding the death sentences of Sohana Ram, Gyana Ram and Asa Ram, the reference of confirmation of death sentence is rejected and the sentences of extreme penalty of death awarded to these three appellants namely. Sohana Ram, Gyana Ram and Asa Ram are converted to imprisonment for life Appellant Chaina Ram is already on bail, he need not surrender to it. His bail bonds stand discharged. Appellant Kheraj Ram is in custody, he shall be set at liberty forthwith, if not required in any case, Appellants Sohana Ram, Gyana Ram and Asa Ram are behind the bars. They shall suffer the sentences for imprisonment for life awarded to them.Appeals Partly Allowed. *******