JUDGMENT 1. - This is an appeal against the conviction and sentence passed by the District & Sessions Judge, Alwar convicting the accused appellant Kishan under Section 302 I. P.C. and Kailash under Sections 302 read with Section 34 IPC. and sentencing them to life imprisonment and a fine of Rs. 1000/- each and in default of payment of fine, six months simple imprisonment to each. 2. The facts giving rise to this appeal may be briefly stated as follows : 3. One Ram Lal lodged a report at Police Station Rajgarh district-Alwar on 22.7.82 at 2.30 AM. stating that his brother a tea stall at Alwar and another younger brother Mohan Lal also works in that tea stall. On 19.7.82 at about 8.00 PM. when he and Khiladi Meena were returning to their house after taking bath in the Bawdi, he heard cries of brother Mohan Lal who was saying Bhag Jao-Bhag Jao. Thereupon, he and Ram Khiladi went to Mohan Lal and saw that his brother Mohan Lal had been cut by Kailash and one more person whose name he did not know. Kishan Lal inflicted a knife blow on Mohan Lal's abdomen. His brother fell down. At that time Chatru, Behari and other persons of the village had also come there. Mohan Lal told him that the money which he had in his pocket of Kurta had also been snatched away by Kishanya and Kailash. He brought his brother in a tractor of Ramjilal to Alwar, wherein Ram Kishore, Jamura, Ranglal, Prabhati, Girdhari, mother ol Mohan Lal and wife of Mohan Lal also accompanied. When they reached near Mala Kheda, it was though proper to show to the doctor there and they took him to the doctor at Malakheda who declared his brother dead. Thereupon they brought the dead body to their village where his brother Jawahar Lal met him and told that Mohan Lal had Rs. 4015/- in his pocket when he left Alwar and they have killed Mohan Lal because Kailash and Kishan were towards him due to litigation. A case was registered under Sections 302, and 302 read with Section 34 IPC. and after usual investigation a challan was filed. Learned Magistrate committed the case to the Sessions and the learned Sessions Judge after trial convicted and sentenced the accused appellants as stated above. A case was registered under Sections 302, and 302 read with Section 34 IPC. and after usual investigation a challan was filed. Learned Magistrate committed the case to the Sessions and the learned Sessions Judge after trial convicted and sentenced the accused appellants as stated above. It is against this judgment that the present appeal has been filed. 4. Learned counsel for the appellants has submitted that the time of occurrence as given in the FIR. is 800-8.30 P.M. dated 19.7.82 and at that time there was complete darkness and there was no light arrangement near the spot and, therefore, it was not possible for the witnesses to have seen the accused persons and, therefore, the testimony of the eye witnesses should be discarded and not believed and no conviction can be maintained on the basis of such eye witnesses. He has further submitted that since the accused had run away after inflicting fatal blow it was not possible for the witnesses to have recognised them. 5. Learned counsel for the appellants further submitted that the knife alleged to have been recovered at the instance of Kishan has not been produced at the trial nor shown to the doctor at the time of his evidence and moreover, it has not been proved that the knife had human blood and, therefore, that evidence is of no avail. The prosecution has failed to produce any independent witnesses. P.W. 2 and PW. 10 Ram Lal and Rang Lal respectively are real brothers and other witnesses are also either interested or enimical. The statements of the witnesses have been recorded 3-4 days by the Police and, therefore, their evidence cannot be held to be reliable. 6. On the other hand, learned Public Prosecutor has supported the judgment of the learned Sessions Judge. 7. We have looked into the record of the case and have gone through the judgment of the learned Sessions Judge. 8. P.W. 1 Chataru has deposed that while he was sitting, at about 8.00 P.M. rathe Chabutara, where idol of Mahaveerji is installed, he heard some cries and accused Kailash and there was one more person with them, whose name he did not know. 8. P.W. 1 Chataru has deposed that while he was sitting, at about 8.00 P.M. rathe Chabutara, where idol of Mahaveerji is installed, he heard some cries and accused Kailash and there was one more person with them, whose name he did not know. Kailash had caught hold of Mohan Lal and the un-known man had closed the mouth of Mohan Lal by his hands and accused Kishan inflicted a knife blow in the abdomen of Mohan Lal and thereafter accused ran away. Mohan Lals brother Ram Lal and Khiladi had reached the plaee of incident and had seen the incident, Ram Lal and Ram Khiladi had taken Mohan Lal towards the house of Madan Lal and he remained sitting at the Chabutara. In cross-examination he has admitted that Rang Lal Mohan Lal and Ram Lal are the real brothers son of Heera lal and Heera Lals brother Harbux was his grand father. He has further deposed that was the moonlit night and it was not dark. He had seen the incident from a distance about 3-4 steps. Mohan Lal had not fallen at the place of incident and Mohan Lal lad only called Are Ram Are Ram. 9. Some contradictions have also been brought on record from his statement before the police and the statement in the court. He admitted that he was doing Bhajan at the Chabutra and he has denied that he had told the police that Mohan Lal had cried Bhagjao Bhagjao after the knife blow. He has also admitted that there was a criminal ease pending against him in the court of Munsiff Rajgarh he could not deny that accused Kailash had given evidence against him. He has denied that accused Kailash had given evidence against him. 10. P.W. 2 Ram Lal, who is brother of Mohan Lal and had lodged the F.I.R. has stated that when he was coming towards his village from Bawadi side at 3 about 8.30 or 8 00 P.M. along with Ram Khiladi and when they heard cries Bhaglo Bhaglo towards the side of Mahadeoji Chabutara. He told Ram Khiladi that the cries seems to be of his brother Mohan Lal. They went towards the Mahadeoji Chabutara and saw that accused Kailash had caught hold of Mohan Lal. He told Ram Khiladi that the cries seems to be of his brother Mohan Lal. They went towards the Mahadeoji Chabutara and saw that accused Kailash had caught hold of Mohan Lal. Another person had closed the mouth of Mohan Lal and accused Kishan inflicted a blow in the abdomen of Mohan Lal and after inflicting injury accused ran away. At that time P.W. 1 Chatru was sitting on the Chabutara. Mohan Lal was about to fall on the ground that they gave support to him and brought him to the Chabutara of Mohan Lal. Some time after Madan Lal and other villagers also came there. Thereafter they took Mohan Lal to Alwar, but since he died on the way they returned to their village and made the report, and since there was litigation between the accused they had murdered his brother. In cross-examination, some contradictions have been brought about from the statements made under Section 161 Cr.P.C. He has denied that he had stated before the police that Mohan Lal had fallen on the ground. The police did not record the portion that accused Kishan had taken the Kurta of Mohan Lal or that they had brought Mohan Lal to the house of Madan Lal. He has, of course, denied that he could not recognise accused persons as it was dark. He has also admitted that there are houses surrounding the Chabutara of Mahadeoji on three sides and wherein Nandan, Madan Lal are staying. He has also denied that it was dark night and he could not recognise the accused. He has of course admitted that there were criminal litigations between the accused and the complainant party. 11. P.W. 3 Ram Khiladi is another eye witness. He has also supported the statement of Ram Lal (P.W.2) He has admitted that his uncle Kana Ram had 11 deposed against the brother of accused persons. He was confronted with his statement before the Police, wherein he has stated that the incident had taken place at about 8.00 or 8.30 P.M. to which he said that it has been wrongly recorded. He was also confronted with his statement before the police, wherein he had said that Mohan Lal fell down after knife blow and said it must have been wrongly recorded. He was also confronted with his statement before the police, wherein he had said that Mohan Lal fell down after knife blow and said it must have been wrongly recorded. He was further confronted that he had not disclosed the name of Chataru (P.W. 1) that he was present at the spot, to which he said that the police may have not written. Similarly, he has stated that he did state before the police that Kishan Lal had taken the Kurta of deceased, but the police had not written it. He has further deposed that it has been wrongly written in his statement under Section 161 Cr.P.C. and Chataru and Bihari had come after the accused had run away. He further admitted that they did not try to catch hold of the accused persons as they were afraid. He has further admitted that he has given evidence against Munna Lal. 12. P.W. 4 Behari has also been produced as an eye witness. He has deposed that at about 8.00 P.M. when he was going towards the Bawari, he heard cries Bhagjao Bhagjao. He went to the Chabutari of Mahaveerji and saw accused Kishan, Kailash and one more person running away from there, and there he saw Mohan Lal was bleeding from stomach. Khilari and Ram Lal were told that Kishan and Kailash have inflicted knife blow to Mohan Lal. Thereafter, he accompanied Ram Lal and Khilari, who gave support to Mohan Lal and took him to Chabutari of Mohan Lal where many villagers also came and Mohan Lal was taken to Alwar. In cross-examination he has admitted that he is related to Khilari. Aecused Kishan had filed a report against him and his other persons and a challan was also filed in the Court, Later on the matter was compromised. He further admits that he had recognised accused in the stars light. His statement was recorded by the police after 2-3 days of the incident and he had told the Police that Khilari and Ram Lal had told him that Kishan had inflicted blow. The Police may not have written in his statement in Ex.D.4. He also did not try to catch hold or accused nor followed them. 13. P. W. 5 Madan Lal who is the U. D. C. in the Office of S. D. C Alwar has deposed that on 19.7.1982. The Police may not have written in his statement in Ex.D.4. He also did not try to catch hold or accused nor followed them. 13. P. W. 5 Madan Lal who is the U. D. C. in the Office of S. D. C Alwar has deposed that on 19.7.1982. he returned from Alwar by bus and reached his house at about 8-15 P. M. and while he was arranging his cloths he heard some cry from the side of Mahadevji Chabutara and when he came out he found that Ram Lal and Khilari were holding Mohan Lal and coming to his Chabutara. Mohan Lal told at that time that Kishan and Kailash had inflicted the knife blow. Mohan Lal was bleeding from stomach. The site plan was prepared and he had signed the site Plat (Ex. P. 2). He also signed the Panchayat-nainas (Ex. P. 3 & P. 4). The blood stained earth was collected and recovery memos (Ex. P. 5 & P. 6) were also signed by him. The clothes of Ram Lal were also taken in custody vide Ex. P. 7 signed by him. He is also a recovery witness to Ex. P. 8, by which accused Kishan Lal got recovered a knife. The site plan of that place is Ex. P. 9 signed by him. He was also confronted with his statement recorded by the Police (Ex. D 6) and said that it has not been correctly recorded. His statement was recorded by the Police on 30th July, 1982. The Chabutara is at the distance of about 30-35 steps from his house. He has also admitted that there is no electricity in the village and there is no arrangement of street light in their village. 14. P. W. 6 Ram Kishore has deposed that on 19.7.82. at about 8-30 P. M, he had seen accused Kishan and Kailash running away. In the cross-examination he has also admitted that there are criminal litigations, between him and Munna brother of accused Kishan. 15. P. W. 7 Dungar Singh is the S, H. O., Police Station Rajgarh, where F. I. R. was recorded. 16. P. W. 8 is Shri K. K. Sharma, Dy. Superintendent of Police, who had also conducted part of investigation. 17. P. W. 9 is Dr. 15. P. W. 7 Dungar Singh is the S, H. O., Police Station Rajgarh, where F. I. R. was recorded. 16. P. W. 8 is Shri K. K. Sharma, Dy. Superintendent of Police, who had also conducted part of investigation. 17. P. W. 9 is Dr. Shiv Shanker Sharma, who had conducted autopsy of deceased Mohan Lal and has deposed that deceased has received incised wound on the abdomen and the size of the incised wound is 4.5 X 18 cm. and which was sufficient to cause death in the ordinary course of nature. 18. P. W. 10 Rang Lal the brother of the deceased had also seen Kailash and Kishan running when they came out of their house after hearing cries Bhagjao- Bhagjo. He has also admitted that there is enmity between the accused and Mohan Lal. He has further stated that he could recognise Kishan and Kailash without Though it was dark, but he lighted torch to see the 3rd person. 19. P. W. 11 is Ram Swaroop. 20. Accused Kailash had filed written statement denying the prosecution evidence and had said that he was not in the village on that day and was working on lie tractor of Sarpanch Har Sahai and the statement of Harsahai Sarpanch, Sita Ram Bodan and Kanchan were also recorded by the Investigating Officer. Mohan Lal was Dusnumbri and a case under Section 110 I. P. C. was also registered against him and he has been falsely implicated. Kishan Lal also filed his written statement in writing and has said that he has been falsely implicated because of enmity. All the prosecution witnesses are interested with the complainant party and towards them and he was not present in the village on that day. He has submitted that the statement of Smt. Prabhati wife of deceased had also been recorded by the Investigating Officer, wherein she has deposed that she was the eye witness, but did not name Ram Lal Khiladi and Chataru being present at the place of incident. Accused examined D.W. 1 Harsahay Sarpanch, who deposed that accused Kishan was plying Tractor on 19.7.82. from 6 A. M. to 10-00 P. M. and D W. 2 Hardwari has been examined to say that accused Kishan was with him in his village Sangwadi. 21. Accused examined D.W. 1 Harsahay Sarpanch, who deposed that accused Kishan was plying Tractor on 19.7.82. from 6 A. M. to 10-00 P. M. and D W. 2 Hardwari has been examined to say that accused Kishan was with him in his village Sangwadi. 21. The prosecution case is unanimous that, the incident took place near the Vhabulara of Mahadeoji on 19.7.1982., which is surrounded by the houses. The time given in the F. I. R. is about 8 and 3.30 P. M. P. W. 1 Chataru says that it was 8 P. M., whereas P. W. 2 says it is 7.30 or 8.00 P.M. P. W. 3 also deposes about 7.30 & 8.00 P. M. 4 says it was 8.00 P. M. P. W. 5 has stated that he reached his village from Alwar by bus and reached his house at about 8.15 P. M. and when he was changing his clothes he heard the cries from the side of Mahadeoji's Chabutara. So, it is clear that the incident took place at about 8 and 8-30 P. M. as has been slated in the F. I. R. also. It is also admitted that there was no electricity in the village nor there was any arrangement for the road light. 22. Learned counsel for the appellants has referred the Panchang, which shows that on 19th July, 1982 it was Srawan Wadi 14 (Chaudas) i.e. one day before the dark night of Amavasya. The sun-set time at that time is about 6.45 P. M. according to the Panchang and, therefore, even if we take half an hour for twilight period, it will become dark at 7:15 P.M. The incident decidely took place after 8.00 P. M. and therefore, by that time it must be complete dark and, therefore, it was not possible for the so called eye witnesses on behalf of the prosecution to recognise the persons who had inflicted the knife blow or who had caught hold of deceased Mohan Lal. Apart from this, the prosecution story is that the prosecution witnesses 2, 3 and 4 reached the spot after hearing the cry "Bhagjao-Bhagjao from the side of Mahadeoji Chabutara and the accused persons did not stay long at the place of incident to catch hold of Mohan Lal, of inflicted knife blow and when they ran away and the cries must have been given only after Mohan Lal had received the knife blow and, therefore P. Ws. 2, 3 and 4 who are said to be the eye witnesses could not have seen the actual incident of inflicting as they reached near the spot after hearing cries and the accused ran away immediately after inflicting the blow and since it was a dark night, it was impossible for any of the prosecution witnesses to have recognised the accused persons in the dark night. PW 1 Chataru has stated that he was sitting on the Chabutara of Mahadeoji and he was doing Bhajan and when he heard the cry he saw the incident. In the site plan (Ex. P. 2) the distance of the place where the incident took place, from the Chabutara, has not been shown nor PW 1 has given the distance of Chabutara from the place where deceased Mohan Lal was inflicted blow. Moreover, there are several contradictions on all material points from his statements recorded by the Police and the one recorded at the Sessions trial. He is also not an independent witness. He is enimical towards the accused persons and, therefore, his evidence does not inspire confidence and we cannot term him as wholly reliable witness, in as much as he has stated in his cross examination that it was a moon lit night, which is absolutely false and no reliance can be placed on such a witness. 23. All the prosecution witnesses, PW 1 Chatru, PW 2 Ram Lal, PW 3 Ram Khiladi, PW 4 Behari and PW 5 Madan Lal are interested witnesses and enimical towards the accused persons as litigation is going on between the two parties and they are appearing as witnesses in those cases and therefore, their evidence has to be examined with great care and caution. 24. As we have already found that it was not possible for the prosecution witnesses to have recognised the assailants, no reliance can be placed on their evidence. 24. As we have already found that it was not possible for the prosecution witnesses to have recognised the assailants, no reliance can be placed on their evidence. Moreover the prosecution has not been able to connect the knife which is alleged to have recovered at the instance of Kishan. It has not been proved that the knife had human blood or even the blood stained truth and the clothes were not sent to the Serologist to prove that it was human blood. The prosecution has remained satisfied after producing the report of Forensic Science Laboratory (Ex. P. 20) which only shows that they were blood stained and though Ex. P. 20 says that the articles were sent to the Serologist for examination, but the report has not been produced before the court. The prosecution has also failed to produce independent witnesses whose houses were near the place of incident and specially the son and wife of the deceased, who had been interrogated by the Police under Section 161 Cr.P.C.and according to the statement of the accused persons they had not supported the pros caution story as has been brought on record, which completely negatives that PW 1 to PW 4 could be the eye witnesses to the incident. The story of PW 5 Madan that deceased Mohan Lal had told him that Kishan and Kailash had inflicted knife blow to him has not been supported or corroborated by any other eye witness, were admittedly present at that time and, therefore, no reliance can be placed on the evidence of PW 5 Madan Lal with regard to so called dying declaration, specially when his statement was recorded by the police after 10 days i.e. on 30th July, 1982 when he was admittedly present in the village and was available to the police. 25. In this view of the matter we are of the opinion that the prosecution has miserably failed to bring home of the guilt to the accused persons and we have no option but to accept the appeal, set-aside the conviction and sentence awarded by learned Sessions Judge. 26. In the result, the appeal is allowed. The conviction of accused appellants Kishan @ Kishanya and Kailash is set-aside and they are acquitted of the charges levelled against them. The accused appellants are in jail and they maybe released forthwith, if not required in any other case. *******