JUDGMENT 1. - These appeals are directed by accused Chunia and Aidan against the judgment of the learned Sessions Judge, Balotra, Dated 17-4-1974, whereby the appellants were convicted and sentenced, as under : AIDAN : (1) Under Section 302, I.P.C. Life imprisonment and a fine of Rs. 100/-, in default, to further under go one month's rigorous imprisonment. (2) Under Section 460, I.P.C. Seven Year's rigorous imprisonment and a fine of Rs. 50/-, in default, to further undergo 15 days rigorous imprisonment. (3) Under Sections 394/397, I.P.C. Eight Years' rigorous imprisonment and a fine of Rs. 50/-, in default, to further undergo 15 days' rigorous imprisonment. CHUNIA : (1) Under Section 302/34, I.P.C. Imprisonment for life and a fine of Rs. 50/-, in default, to further undergo 15 days' rigorous imprisonment. (2) Under Sections 394/ 397/34, I.P.C. Eight Years' rigorous imprisonment and a fine of Rs. 50/-, in default, to further undergo 15 days' rigorous imprisonment. The substantive sentences were ordered to run concurrently. 2. Briefly stated, the prosecution case is that on the night intervening 21-3 1973 and 22-3-1973, the two ladies, named, Tulsi aged 70 years and Khushali aged 80 Years, were sleeping at their house. It is said that the accused Aidan and one other accuse, who is said to be absconding, Ghamanda Ram, entered into the house at the mid night, gave serious beating to both of them and took away ornaments from their persons, as well as from the house. It is said that Mst. Tulsi succumbed to the injuries, Mst. Khushali sustained simple injuries and grievous injuries. As regards Chunia the prosecution case is that he was waiting and watching outside the house. Then all of them went away. A written report of the occurrence was lodged by Amritlal (P.W. 2) on 22-3 1973 at 4-30 P.M., in which he stated that the two old ladies live in the house of Baghsingh. They continues to talk up to 10.00, P.M. in the night. In the morning at about 8.00 A.M., Chunaram, Chautharam Sunar and Pusaram were sitting at his shop. There they heard cries of a cow. Thereupon they went to the house of Baghsingh and untied the cow. They also called out the two old ladies, but they did not respond. They continues to talk up to 10.00, P.M. in the night. In the morning at about 8.00 A.M., Chunaram, Chautharam Sunar and Pusaram were sitting at his shop. There they heard cries of a cow. Thereupon they went to the house of Baghsingh and untied the cow. They also called out the two old ladies, but they did not respond. But when they saw through crevices of the door of the Ora, it was observed that one lady was lying prostrate, but the voice of the other old lady could not be heard. It was reported by him that the lady lying prostrate, was lying dead. One Anopia (P.W. I) was sent to Jodhsingh and Rawatsingh to inform that Tulsi had died and the other lady Khushali is lying in a precarious condition, so they come and meet her. Jodhsingh is the adopted son of Baghsingh, since deceased, and natural son of Rawatsingh (P.W.9) Anopia first informed Rawatsingh and then Jodhsingh Rawatsingh (P.W. 9) visited the spot at about 10.00 a.m., and on making an inquiry it is said that Mst. Khushali divulged this fact to him that she had been injured by Idan and Ghamanda and that Tulsi had been done to death. Jodhsingh (P. W. 8) visited the spot at about 11.00 a.m., the same day. Whatever was stated by Khushali to Rawatsingh, was narrated to him by Rawatsingh. Thereupon he went to the Police Station and lodged the report. On the report to Jodhsingh, a case under Sections 302, 307, 460 and 397, I.P.C., was registered. Both the appellants were arrested on 23-3-1973 vide arrest memos Ex. P/7 and Ex. P/8. Post-mortem Examination was got conducted on the dead body of Mst. Tulsi on 23-3-1973 at 10-00, a.m., at Piprali. Mst. Khushali also succumbed to her injuries and her post-mortem examination was conducted on 24-3-1973 at 10.00, a.m. by Dr. Bhanwarlal (P.W. 10). According to Dr. Bhanwar Lal the case of death of Mst. Tulsi was throttling as she sustained as many as nine injuries. Mst. Khushali sustained as many as eleven injuries and the cause of death of Mst. Khushali was due to the laceration of the occipital lobe of the brain, and the injuries were caused on the person of Mst. Khushali by sharp cutting weapon and were sufficient in the ordinary course of nature of cause death. Mst. Khushali sustained as many as eleven injuries and the cause of death of Mst. Khushali was due to the laceration of the occipital lobe of the brain, and the injuries were caused on the person of Mst. Khushali by sharp cutting weapon and were sufficient in the ordinary course of nature of cause death. Investigation was conducted from the witnesses and after completion of the investigation, charge-sheet was presented against the accused persons. The case was ultimately committed to the Court of Session, Balotra. The learned Sessions Judge charged the accused person with the various offences, to which the accused person pleaded not guilty and claimed to be tried. The prosecution in all examined 15 witnesses. In the statements, made by the accused persons, the accused persons denied the entire prosecution case. No evidence was lead in defence. After hearing of the arguments the learned Sessions Judge convicted and sentenced the accused persons, as aforesaid. Aggrieved against their convictions and sentences, the accused persons preferred these appeals. 3. We have heard Shri Doongarsingh, learned counsel for the appellants, and Shri R.P. Dave, learned Public Prosecutor, for the State. 4. The learned Sessions Judge in order to bring home the various offences placed reliance on the evidence relating to extrajudicial confession, on the evidence of dying declaration, on the evidence of recovery of ornaments and also on the evidence of circumstance of the accused persons having been seen at the relevant time at the house of Baghsingh. This evidence consist of the two witnesses Amrram (P.W. 6) and Chaturaram (P.W. 7). It is to be seen as to whether there is any reliable evidence on the basis of which the accused persons can be held guilty of commission of the offence. We would be examining the evidence, which has been relied upon by the learned Sessions Judge in order to hold the appellants guilty. First of all we take up the evidence of Amraram and Chaturaram. Both these witnesses are said to the neighbouring residents. The Dhani of Chaturaram is said to be at a distance of 20 panundas from the Dani of Baghsingh and the house of Amraram is said to be near the Dhani of Baghsingh. The witness Amraram has stated that he heard the cries of Mst. Khusali and Tulsi to the effect that "Ghamandia, Aidan Marar Mat". The Dhani of Chaturaram is said to be at a distance of 20 panundas from the Dani of Baghsingh and the house of Amraram is said to be near the Dhani of Baghsingh. The witness Amraram has stated that he heard the cries of Mst. Khusali and Tulsi to the effect that "Ghamandia, Aidan Marar Mat". Chaturram has deposed to the same effect, but he stated that he heard the voice of Tulsi. It is said that both of them came out of the house in the mid night and they saw the accused Chunia at the door of the Dhani of Baghsingh and they also saw the accused Aidan and the other absconding accused Ghamandaram coming out of the Dhani of Baghsingh. Thereafter all the three went away. Both of them have stated in cross-examination that they did not narrate the occurrence to any one either in the night or in the morning. It is also not their case that they visited the house of Baghsingh in the night or even in the morning. The witness Chaturaram has stated that he did not even divulge any information to Jodhsingh and Rawatsingh when they visited the house of Baghsingh According to him, they had no talk with the accused Aidan and Ghamanda. Similar is the statement of Amraram that before arrival of the police he did not narrate anything to Jodhsingh and Rawatsingh, nor he had a talk with Chatura Ram. In view of their statements, as given in cross-examination, it is to be seen as to whether the evidence of these witnesses can be relied upon? The conduct of both these witnesses appears to be highly unnatural and abnormal and so the credibility of their statements becomes highly doubtful. Being neighbours what was expected from them, was to find out in the night as to what had actually taken place with the two ladies. After ascertaining that what had transpired, it was further expected from them to narrate the matter immediately to the near relations of the two ladies and other neighbours. As stated by them, they even did not narrate anything to Jodhsingh and Rawatsingh. Such a conduction on the part of these two witnesses renders their testimony unbelievable. Without caring of the matter, Amraram even left in the morning for alms. As stated by them, they even did not narrate anything to Jodhsingh and Rawatsingh. Such a conduction on the part of these two witnesses renders their testimony unbelievable. Without caring of the matter, Amraram even left in the morning for alms. Thus, the prosecution cannot take any help from the testimony of these two witnesses to connect the accused persons with the commission of the offence. 5. The next evidence employed by the learned Sessions Judge for connecting the accused with the commission of the offence is the evidence of extra judicial confession. This evidence consist of the statement of Hanzari (P.W. 13). According to the Statement of this witness, first the accused Aidan came to him at Gorkhe ki Dhani and divulged that two days ago in the night he and Ghamandaram had killed the widows of Baghsingh and that the property had been taken away by Ghamandaram. This witness is the resident of Bhimthal and he had visited the said Dhani in connection with some transaction of a camel. Gorkhe ki Dhani is said to be at a distance of three Kos from the village Piparali. This witness has also stated that after what was divulged by Aidan, Chunia also came to him and narrated him that Aidan and Ghamanda had killed the widows of Baghsingh and so he may now help them, as the police had arrived. Thereupon he refused to accompany him. According to this witness, there was no third person present at the time when the matter was divulged by, Aidan and Chunia. It is really very strange that both the accused persons came to him one after the other at a place, which was not the place of ordinary residence of the witness Hanzari. The witness Hanzari has not stated as to how confidence was reposed in him by both the accused persons. The credibility of what the witness has deposed, can also be judged in the light of the statements of Amraram and Chatura Ram, as according to them Chunia remained outside the house of Bagh Singn and waiting watching and guarding the place. The narration, as given by Chunia to this witness, so far as he himself is concerned, is exculpatory. It cannot amount to any confessional statement, so far as he is concerned. So whatever is said by Chunia to this witness, cannot implicate him. The narration, as given by Chunia to this witness, so far as he himself is concerned, is exculpatory. It cannot amount to any confessional statement, so far as he is concerned. So whatever is said by Chunia to this witness, cannot implicate him. Coming to the statement made to this witness by Aidan, the statement of this witness does inspire confidence for the simple reason that according to what has been divulged, the occurrence took place in the night two days ago. Aidan and Chunia were already arrested on 23-3-1973. Thus, there was no occasion for Aidan to make such a statement to the witness. For the above reasons, in our opinion, the evidence of Hanzari is rendered incredible and cannot be pressed into service to connect the accused persons for the commission of any offence. 6. The other piece of evidence is the evidence relating to dying declaration, as deposed by Rawat Singh (P.W. 9). Rawatsingh has stated that he reached the place of occurrence at about 10.00, a.m. and when he asked Mst. Khushali, she disclosed that she had been injured by Aidan and Ghamanda and Tulsi had been killed by them. It is true that Mst.Khushali died next day. The question arises, was she in such a state of physical and mental condition that she could give the said statement? This matter has to be examined in the light of other evidence on record, Amritalal (P.W,4) has stated that Mst. Khushali was in an unconscious state and was simply murmuring. Amritlal has visited the scene of occurrence at about 8.00, a.m. on the same day when Rawatsingh visited the place. Rawat singh stated that Khushali was speaking when Jodhsingh had come. Jodhsingh came at about 11.00, a.m., but Jodhsingh has stated that Khushali did not speak after his arrival till she died. She continued to remain unconscious.Dr. Bhanwarlal has found 11 injuries on the person of Khushali and the two injuries were on the lips. The dimension of the two injuries, is not negligible. Besides that, there was a fracture of the occipital bone and the Doctor has further deposed that on 22-3-1973 at 9.00,p.m., when he visited the village Piparli he found that Khushali could not speak because she was as delirious. Mst. Khushali was aged about 80 years. The dimension of the two injuries, is not negligible. Besides that, there was a fracture of the occipital bone and the Doctor has further deposed that on 22-3-1973 at 9.00,p.m., when he visited the village Piparli he found that Khushali could not speak because she was as delirious. Mst. Khushali was aged about 80 years. Looking to her age and looking to the injuries on her person and further in the light of the statement of Amritlal and of Dr. Bhanwarlal, it cannot be believed that she was in a position to divulge anything to Rawatsingh. Further there is a contradiction, as stated above, in the statements of Jodhsingh and Rawatsingh as to whether she was speaking at the time of arrival of Jodhsingh. Besides the statement of Rawatsingh, there is no other evidence of corroborative character in connection with the said dying declaration. There must be some other persons present at the time when Rawatsingh arrived. Besides that, Rawatsingh cannot be considered as an independent person. As already stated, he is the father of Jodhsingh, the adopted son of Baghsingh. So he cannot be considered to be a disinterested witness. For all these reasons we are not prepared to believe the testimony of Rawat Singh. 7. The remaining connecting evidence consists of the statement of Shriram (PW 5), to whom, it is said, that Ghamandaram disposed of the ornaments. Nothing has come on record as to how the name of this witness Shriram came in investigation. Admittedly the recovery has not been effect in pursuance of any information. The witness did not know Ghamandaram from before. This piece of evidence cannot be employed to connect the appellants for the commission of "the offence. What this witness has stated is that it was Ghamandaram, who came to him and disposed of silver ornaments to him and golden ornaments were not sold, because the bargain was not settled. So far as the appellants are concerned, the testimony of this witness cannot be considered to be incriminatory. Thus, there is complete lack of credible evidence against the appellants on the basis of which the appellants can be half guilty for the commission of any offence. 8. In the result, both the appeals deserve to be allowed. 9. Accordingly, the appeals are allowed. The convictions and the sentences of the appellants are set aside. Thus, there is complete lack of credible evidence against the appellants on the basis of which the appellants can be half guilty for the commission of any offence. 8. In the result, both the appeals deserve to be allowed. 9. Accordingly, the appeals are allowed. The convictions and the sentences of the appellants are set aside. The appellant Chunia is already on bail, so he need not surrender to his bail bonds. His bail bonds are discharged. The appellant Aidan, who is in jail, shall be released forthwith if he is not required in any other case.Appeals Allowed. *******