JUDGMENT 1. - This appeal is directed against the judgement dated July 18, 1979 of Additional Sessions Judge No. 2, Alwar, whereby he convicted accused-appellants Prithvi alias Prithvi Pal Singh and Malook Singh under Section 302 read with Section 34 Indian Penal Code and sentenced them to imprisonment for life and a fine of Rs. 100/- each. In default of payment of fine to suffer further imprisonment for one month each. Accused Prithvi Pal Singh was also convicted under Section 3/25 of the Arms Act and was sentenced to suffer six months' rigorous imprisonment. The substantive sentences of imprisonment awarded to Prithvi Pal Singh were ordered to run concurrently. 2. Succintly speaking the facts as disclosed at the trial for the decision of this appeal are that on May 15, 1978 Mahendra Singh (since deceased), his wife PW 2 Kartar Kaur and his aunt PW 4 Mst. Gurucharan Kaur went from their village Khalsa Karoli to Nogawan for selling wheat. Mst. Gurucharan Kaur got down from the bullock-cart as soon as they reached Nogawan. The wheat was sold to PW 9 Nemi Chand. They purchased some house-hold goods from the village and at the dusk time they left village Nogawan for their home. PW 2 Mst. Kartar Kaur and her husband Mehendra Singh (since deceased) occupied the bullock-cart and Pratap Singh PW 6 was following them on foot. When they reached near the cremation, ground of the village, both the appellants namely, Prithvi Pal Singh and Malook Singh and an unknown person who had muffled his face emerged out of their place of hiding. Prithvi Pal Singh addressed the deceased in a tell-tale manner HINDI MATTER 373271 A Thereafter the third accused fired a shot and the appellants dragged him down and inflicted injuries with lathi and Neja as a result of which Mahendra Singh met instananeous death. One of the accused rushed after Pratap Singh, but he took to his heels and went to his village. After inflicting injuries all the three accused left the scene of occurrence. A written report of this occurrence Ex. P/ 1 was filed by Jaimal Singh PW 3 with the police station, Ramgarh (Alwar). On the basis of this report a first information report Ex. P/2 in the prescribed form was reduced into writing and a case under Section 302 Indian Penal Code was registered against the accused-appellants. A written report of this occurrence Ex. P/ 1 was filed by Jaimal Singh PW 3 with the police station, Ramgarh (Alwar). On the basis of this report a first information report Ex. P/2 in the prescribed form was reduced into writing and a case under Section 302 Indian Penal Code was registered against the accused-appellants. PW 11, Narpat Singh after registering the case came on the scene of occurrence, prepared an inquest report. The post-mortem on the dead body of Mahendra Singh was performed by Dr. Subhash Chandra Gupta PW 2, who noticed 12 external injuries, out of which injuries Nos. 1, 2 and 12 were found to be grievous. In the opinion of the Doctor, injury No. 5 could be caused by a sharp weapon and injuries Nos. 3 and 4 could be caused by pointed weapon. The cumulative effect of the injuries was sufficient in the ordinary course of nature to cause death. The accused were arrested during the course of investigation and ultimately tried by the Additional Sessions Judge No. 2 Alwar. The prosecution examined PW 1 Jahaj Khan to prove the motive of murder PW 2 Kartar Kaur and PW 6 Pratap Singh were examined as eye-witnesses of the occurrence PW 3 Jaimal Singh is the author of the F.I.R. PW 10 Dr. Subhash Chandra was examined to prove the post-mortem report and Narpat Singh is the investigating officer of the case. The accused persons denied their complicity in the crime and examined DW 1 Budha Lal and DW 2 Maksood in support of their plea. 3. Learned Additional Sessions Judge held that there was variance in the statements of the prosecution witnesses, but such variance is found in the statements of natural witnesses, who are not tutored. Placing reliance on the prosecution case, he convicted the accused and sentenced them as mentioned above. Hence this appeal. 4. It cannot be disputed that Mahendra Singh sustained injuries at the time, date a: d place of the occurrence alleged by the prosecution as a result of which he met instantaneous death. 5. Mr. Dave, learned counsel for the appellants, has urged that there are certain outstanding features of this case, which, according to him, are sufficient to throw doubt on the entire prosecution case. It has been urged that the occurrence would not have taken place in the manner alleged by the prosecution witnesses. 5. Mr. Dave, learned counsel for the appellants, has urged that there are certain outstanding features of this case, which, according to him, are sufficient to throw doubt on the entire prosecution case. It has been urged that the occurrence would not have taken place in the manner alleged by the prosecution witnesses. The testimony of the eye-witnesses is totally inconsistent with the first information report. The deceased may have been assaulted by unidentified assailants and the appellants have been falsely implicated in the occurrence. The entire prosecution case is sought to be proved by the partisan evidence, which ought not to have been accepted in this case. There was no reason for the eye-witnesses to be on the scene of occurrence at the time of the incident. It is an admitted case of the prosecution that the deceased received Rs. 500/- from Nerni Chand, but at the time of preparation of the inquest report no amount was found in his pocket, which suggests that somebody else might have committed murder for the greed of wealth and the accused have been implicated on account of enmity. Learned Public Prosecutor appearing on behalf of the State and the learned counsel for the complainant have supported the judgement of the trial Court. 6. There is no dispute between the parties that the entire prosecution case is based on the statements of two witnesses and if their statements are found to be unreliable, there remains nothing to maintain the conviction of the accused-appellants. The case as disclosed in the first information report was that Mahendra Singh (since deceased) and his wife after selling wheat in village Nogawan were returning back to their village in a bullock-cart. Pratap Singh was following them on foot. When they reached near the crimation ground of the village three persons emerged out from the side of sheesham trees. Out of the three, one had muffled his face. As such he could not be identified and the remaining two were the appellants. They were armed with pistols. Accused appellant Prithvi Pal Singh in a tell-tale manner cried HINDI MATTER B The wife of the deceased got down of the bullock-cart and all the three accused dragged Mahendra Singh down. At that stage accused-appellant Pritvi Pal Singh fired a shot towards Mahendra Singh. They were armed with pistols. Accused appellant Prithvi Pal Singh in a tell-tale manner cried HINDI MATTER B The wife of the deceased got down of the bullock-cart and all the three accused dragged Mahendra Singh down. At that stage accused-appellant Pritvi Pal Singh fired a shot towards Mahendra Singh. Pratap Singh raised a cry for help, who was followed by accused-appellant Malook Singh who had a pistol in his hand, but Pratap Singh could make his escape good. No doubt this first information report was not given by an eye-witness, but PW 6 Pratap Singh during the course of cross examination admitted that when he was narrating as to how the occurrence took place to Jaimal Singh, Mst. Kartar Kaur was also sitting besides the dead body and was weeping. No one questioned Mst. Kartar Kaur and she did not narrate the story to any one. Thus it is an admitted case of the prosecution that the first information report of this occurrence was given by PW 3 Jaimal Singh in consultation with eye-witness Pratap Singh. It is significant to note here that according to the first information report none of the accused was armed with a stick or a pharsa or a spear. A perusal of the post-mortem report Ex. P; 16 and the statement of PW 10 Dr. Subhash Chandra Gupta shows that out of 12 injuries sustained by the deceased, 9 injuries were caused by blunt weapon, two injuries were caused by pointed weapon and one injury was caused by a sharpedged weapon and the deceased did not sustain any gun shot injury. Thus there is considerable merit in the argument of the leanied counsel for the appellants that the prosecution witnesses have given up the original case and have tried to build up a new case at the stage of the trial, wherein they stated that the shot was fired by the third man and sharp and blunt weapon injuries were caused by the two appellants. First information report of this occurrence was lodged after nearly 9 hours of the murder. First information report of this occurrence was lodged after nearly 9 hours of the murder. The major discrepancies in the statements of the eye-witnesses and the first information report regarding the manner in which the crime was committed coupled with the fact that both the eye-witnesses are interested persons does create suspicion about the presence of the witnesses on the scene of occurrence at the time of the assault or at least creates a doubt regarding the veracity of their statements. Pratap Singh did not sell or purchase anything in village Nogawan on that day. He had not gone along with the deceased. The witness for showing his presence on the scene of occurrence has stated that on the date of murder he had gone to Nemi Chand for taking the purchase price of the mustard seeds sold by him to the firm. PW 9 Nemi Chand did not make such a statement. The Public Prosecutor even did not suggest such a question. This witness at the stage of trial has improved his statement and has stated that both the appellants inflicted injuries with sticks and Neja. He was confronted with his police statement. In cross-examition he admitted that in his police statement he did not state that any one of the accused was armed with lathis or Neja. He was confronted with his police statement regarding the part performed by Mst. Kartar Kaur. The witness instead of explaining the contradiction, had the audicity to state that the portion marked A to B in Ex. D.4 was not stated by him. Regarding the manner of the quarrel the witness stated that the statement made by him in the Court was correct, but failed to explain as to why he made a different statement in the police. In cross-examination the witness stated that on the scene of occurrence he did not notice as to what weapon was in the hands of each accused. The witness at the most appears to be a chance witness. It is proverbially rash to rely upon a chance witness. Reference may be made to Ismali Ahmed Peepadi v. Momin Bidi and others, AIR 1941 PC 11 . The witness at the most appears to be a chance witness. It is proverbially rash to rely upon a chance witness. Reference may be made to Ismali Ahmed Peepadi v. Momin Bidi and others, AIR 1941 PC 11 . The first version given by the witness to PW 3 Jaimal Singh stands contradicted by the medical evidence The learned Additional Sessions Judge did not give proper weight to the infirmities appearing in the statement of the witness and was not correct in placing reliance on the statement of this witness. 7. Now remains the statement of PW 2 Mst. Kartar Kaur. She admitted that she was examined by the police on the next day of the police coming on the scene of occurrence. She also admits that she was interrogated at the Police Station in persence of Jaimal Singh and Pratap Singh. PW 3 Jaimal Singh and PW 6 Pratap Singh stated that prior to the giving of first information report. PW 6 Pratap Singh narrated the manner of occurrence to PW 3 Jaimal Singh in presence of PW 2 Mst. Kartar Kaur. The version given in the first information report is altogether different than that narrated by her in the police or the Court. There is sufficient merit in the argument advanced by the learned counsel for the appellants that as she was examined by the police after the autopsy on the dead body of her husband was performed, she could introduce lathis and Neja in the hands of the two accused-appellants. If she would have seen the accused-appellants causing injuries with Neja and a lathe, then it was expected from her to tell PW 3 Jaimal Singh that the version given by PW 6 Pratap Singh was not correct. The witness wants us to believe that she made a number of attempts to save her husband she was thrown back yet she did not receive any injury. In cross-examination she stated that she did not see any one running after Pratap Singh. When she was confronted with her police statement Ex. D/1, the witness instead of explaining the cortradiction made an evasive answer and stated that she did not remember whether or not she made statement before the police as contained in Ex. D/1 Admittedly she is an interested witness. When she was confronted with her police statement Ex. D/1, the witness instead of explaining the cortradiction made an evasive answer and stated that she did not remember whether or not she made statement before the police as contained in Ex. D/1 Admittedly she is an interested witness. Keeping in view the contradictions appearing in her statements and introduction of a new story than that disclosed in FIR, it would note be safe to maintain the conviction of the two accused-appellants on her solitary statement. 8. As regards motive it would suffice to say that motives of men are often subjective, submerged and unamenable to easy proof. Motive even if held to be proved, cannot be held to be sufficient to convict an accused in absence of other evidence on record. The prosecution witness have deliberately made attempt to improve the prosecution case after the performance of autopsy on the dead body of Mahendra Singh and during the course of trial. The prosecution can succeed by substantially proving the very story it alleged at the inception of the case. The Court cannot on its own make out a new case for the prosecution and convict the accused on that basis. When the substratum of the evidence given by the eye-witnesses examined by the prosecution is found to be false or doubtful, the only prudent course in the circumstances of the case left to the Court is to give benefit of doubt to the accused. 9. The result of the above discussion is that the appeal filed by accused-appellants Prithvi alias Prithvi Pal Singh and Mallook Singh succeeds. The conviction and sentence awarded to the accused-appellants by the trial Court by judgement dated July 18, 1979 are set aside and they are ordered to be released forth with, if not required in any other care.Appeal allowed. *******