JUDGMENT 1. - This appeal is directed against the judgment of Additional Sessions Judge No, 2, Alwar, dated September 7, 1981, whereby he convicted and sentenced the accused-appellants as under : 1. All the accused-appellants were convicted for offence under section 302/149 IPC and sentenced to imprisonment for life and a fine of Rs. 3000/- each, in default whereof to further undergo rigorous imprisonment for one year. 2. All the accused-appellants were convicted for offence under section 148 IPC and sentenced to imprisonment for two years and a fine of Rs. 500/-each, in default whereof to further undergo rigorous imprisonment for three months. 3. The accused-appellant Jumme Khan was convicted for offence under section 323 IPC and sentenced to rigorous imprisonment for one month and a fine of Rs. 100/-, in default whereof to further undergo rigorous imprisonment for seven days. All the substantive sentences were ordered to run concurrently. 2. Brief facts giving rise to this case are that on October 20, 1980 at 6.30 p.m. a report was lodged at police station Rajgarh scribed by Vijal Singh at the instance of Smt. Shitabi, PW. 3 and Smt. Deeni PW. 6. This report was presented at the police station by one Soorajmal. The original document scribed by Vijal Singh is Ex.P. 2 while the report taken down in proforma is Ex.P. 25. According to the report a dispute took place in village Bileta between Mussa Khan Meo, Atru Khan Meo, Mallu Khan Meo, Jumme Khan, Subbe Khan and Chhajju. This incident clearly took place at the house of Mussa Khan ; wherein Dhundhal Khan and Sardar Khan lost their lives. The dead body of both the deceased was lying on the spot. The incident is alleged to have been seen by Haiti Khan Meo, Nadru, Kesar Singh etc. who were present at the place of the incident. It was mentioned in the report that report is taken down at the instance of Smt. Shitabi and Deeni wives of Dhundhal and Sardar deceased respectively. On receipt of this report a case was registered for offence under sections 302/147/148/149 IPC. Soorajmal and Rehmat who had taken the report to the police station were interrogated by the police and on interrogation they said that they had also reached the place of occurrence soon-after the incident. They stated that Mussa and Dhundhal were real brothers and are neighbour. Soorajmal and Rehmat who had taken the report to the police station were interrogated by the police and on interrogation they said that they had also reached the place of occurrence soon-after the incident. They stated that Mussa and Dhundhal were real brothers and are neighbour. They got an engine fitted in their well in partnership and some dispute arose regarding distribution. It is because of this that the incident had taken place in which Dhundhal and Sardara lost their lives. The police sent the deceased Dhundhal and Sardara for post-mortem examination which was conducted by Dr. Rajendra Singh Kaushik, PW. 19, who was In-charge, Medical Officer, Primary Health Centre, Malakheda. He found the following injuries on the person of the deceased Sardara : External Injuries : 1. Lacerated wound with underlying fracture of bone 3" x 1/4" x 3" on skull right side on temporal bone 4" from pinna of right ear. 2 Lacerated wound with underlying fracture of occipital bone 4" x 1" x 3" on skull back side on occipital bone brain matter is coming out front side of injury. 3. Lacerated wound with underlying fracture of occipital bone 4" x 1" x 4" on skull back side on occipital bone. Brain matter is coming out from side of injury, 4. Lacerated wound 3" x 1/4" x 2" at the base of skull at mid line 61/2" from right ear lobulte. 5. Bruise 4" x 1" at bass of skull oblique direction. 6. Lacerated wound 2" x 1" x 2" on right temporal bone 3" from pinna of right ear. 7. Lacerated wound 31/2" x 1/4" x 3" on left side of left temporal bone. Part of temporal bone is coming out from side of injury. 8. Abrasion 1" x 1/2" on the base of index finger of left hand. 9. Abrasion 11/2" x 1/2" on the back of palm of right hand. 10. Multip le bruises 4" x 11/4" incised oblique direction on back right side on right scapula region. 11. Multiple bruises 3" x 1" incised to oblique direction and one is transversely direction on left scapula region. Internal Injuries : 1. Multiple fracture of occipital bone. Fracture of temporal bone of left side. Fracture of temporal bone of right side. Brain matter is out from the site of fracture of occipital bone at two places, Membranes are conjusted. 11. Multiple bruises 3" x 1" incised to oblique direction and one is transversely direction on left scapula region. Internal Injuries : 1. Multiple fracture of occipital bone. Fracture of temporal bone of left side. Fracture of temporal bone of right side. Brain matter is out from the site of fracture of occipital bone at two places, Membranes are conjusted. Blood clots present in between skull bone and membrane. 2. Thorax Walls ribs and cartilages. Fracture of fifth rib posteriorly on chest wall on left side. Right lung conjusted, left lung conjusted, Heart right side full & left side empty. 3. Abdomen Stomach and its contents, water contents were present. Small intestines and their contents. Undigested food particles present. In large intestines gases were present Bladder was empty. Organ of' generation present. No product of conception and no mark of injury. In the opinion of the Doctor death occurred due to head injury leading to shock, comma and death. He found the following injuries on the person of deceased Dhundal : 1. Lacerated wound 31/2" x 1/4" x 1" on right temporal bone on skull 21/2" above pinna of right ear,direction. 2. Incised wound 3" x 1/2" x 1" on occipital bone 71/2" from pinna of left ear transversely direction. 3. Incised wound with underlying fracture of occipital bone 21/2" x 1/4" x 11/2" on occipital bone 7" from pinna of right ear, obliquely direction. 4. Penetrating wound 1" x 1/2" x 1" on the base of skull at mid line, obliquely direction. 5. Penetrating wound with fracture of underlying maxilla bone 11/4" x 1/2" x 2" on face left side 2" from left eye towards left ear. 6. Penetrating wound with underlying mandibular bone fracture 11/4" x 1/2" x 11/4" incised 2" below left ear lobule. 7. Bruise 4" x 11/2" on left chest wall, 1" below left nipple with fracture of underlying 5th, 6th & 7th rib anteriorly, 8. Multiple bruises 3" x 1 incise on back of right side. Internal injuries : 1. Granium & spinal cord region:- 1. Fracture of occipital bone of skull. Membranes are congested, Blood clots are present in between skull bone & membrane. 2. Thorax region:- 1. Walls ribs and cartilages-5th, 6th & 7th rib fractured, on chest on left side anteriorly. Right & left lung gorged with blood. Heart right side full & left side was empty. 3. Abdomen 1. Fracture of occipital bone of skull. Membranes are congested, Blood clots are present in between skull bone & membrane. 2. Thorax region:- 1. Walls ribs and cartilages-5th, 6th & 7th rib fractured, on chest on left side anteriorly. Right & left lung gorged with blood. Heart right side full & left side was empty. 3. Abdomen 1. Small intestines & other contents-undigested food particles were present. In large intestines matter present. Bladder was empty. Organ of generation present. No mark of injury of genitals & no product of conception. In the opinion of the Doctor death occurred due to multiple injuries leading to haemorrhage, shock and death.During the course of investigation the investigating officer recorded the statements of Mst. Shitabi and Mst. Dhanni on October 21, 1980 and it is borne out from documents filed under section 173 Cr.P.C. that investigating officer also interrogated and recorded the statements under section 161 Cr.P.C. of Harphool PW. 12, Ramjilal PW. 13 and Aniya. After completion of investigation the police submitted charge-sheet against six persons who were committed to Sessions for trial. At trial the learned Sessions Judge framed charges against the accused-appellants alongwith accused Mussa since acquitted for offence under sections 148 & 302 IPC in the alternate Section 302/149 & 323 IPC for inflicting simple injuries on the persons of Gabbu. Accused denied the charges and claimed to be tried. 3. The prosecution in support of its case examined 23 witnesses and the accused none. They denied the occurrence when examined under section 313 Cr.P.C. The learned Sessions Judge after appraisal of the evidence acquitted the accused Mussa Khan of all the charges levelled against him, but convicted and sentenced the accused-appellants as indicated above. Aggrieved by the aforesaid conviction and sentence this appeal was preferred. 4. Assailing the judgement of the trial court it was submitted by the learned counsel for the appellants that in the first information report which is written document dictated at the instance of the widows of both the deceased names of three eyewitnesses, namely, Hatti Khan, Mandru and Kesar Singh have been mentioned. Out of these three Hatti Khan and Mandru have been with-held and Kesar Singh has not corroborated the prosecution story. It was submitted that Mst. Shitabi and Mst. Dini who had not styled themselves as eye witnesses in the F.I.R. have been examined and believed as eye-witnesses of the occurrence. Out of these three Hatti Khan and Mandru have been with-held and Kesar Singh has not corroborated the prosecution story. It was submitted that Mst. Shitabi and Mst. Dini who had not styled themselves as eye witnesses in the F.I.R. have been examined and believed as eye-witnesses of the occurrence. Besides them three new witnesses, namely, PW. 12 Harphool, PW. 13 Ramjilal and PW. 14 Aniya have been examined and believed as eye-witnesses of the occurrence. It was submitted that the names of these three eye-witnesses neither appear in the F.I.R. nor in the statements recorded under section 161CrP.C. of Mst. Shitabi and Mst. Dini. Besides this, these three witnesses belong to a different village and were chance witnesses. It was submitted that their police statements are alleged to have been recorded on August 21, 1980 but those statements had not been tagged with the case diary and to this effect a notice was also given to the Station House Officer by Judicial Magistrate 1st class, Rajgarh on November 1, 1980. It was submitted that PW. 23 Shiam Sunder who is investigating officer had to admit in his cross examination that he did not dag the police statement of the three eye witnesses in the case diary. He assigned the reason that he did so because the case diary had become quite bulky. It was thus submitted that Mst. Shitabi and Mst. Dini should not be believed because firstly they were not shown as eye-witnesses in the F.T.R. and secondly because they have contradicted themselves on the material aspect of the case and further that their testimony regarding the weapon of offence used is not corroborated by the medical evidence. It was, therefore, submitted that in the absence of any cogent and reliable evidence where the whole family has been roped in and Mussa Khan has already been acquitted the other accused-appellants should be extended benefit of doubt. 5. Mr. G. C. Chatterji, the leaned Public Prosecutor appearing for the state submitted that the F.I.R. is not the last document. After naming the three eyewitnesses, namely, Hatti, Bhadru and Kesar Singh were outsiders have been used which clearly mean that there were more eye witnesses and they were non else than Harphool, Ramjilal and Aniya and there is no reason to disbelieve their statement. After naming the three eyewitnesses, namely, Hatti, Bhadru and Kesar Singh were outsiders have been used which clearly mean that there were more eye witnesses and they were non else than Harphool, Ramjilal and Aniya and there is no reason to disbelieve their statement. It was further submitted that the circumstances in which the report was lodged were such that both the ladies who had put their thumb impressions on the report had lost their husband and it could not have been expected of them to have given a detailed report. It was submitted that they were eye-witnesses as per their statements recorded on the next day under Section 161 Cr.P.C. and the contradiction as earing in their statements are not so serious to discard their statements into to. It was further stated that the accused had a motive to kill the deceased as a dispute had arisen regarding distribution of water from a joint water-pump. It was then submitted that this is a double murder case and there in technicality of not tagging the statements of the witnesses with the case diary should be ignored. 6. We have given our thoughtful consideration to the rival submission and have perused the whole record. 7. PW 3 Mst. Sitabi in her examination-in-chief has stated that she was in her house and was busy with cleaning the grains. Her husband Dhundal was also there who was called by accused Chhajju and the later took her husband to his house to talk about the water pump. Saidara Khan went there as he did not want water to be given. She heard some noise' and went near the house of Roshan, she saw Mallu, Atru, Jumme, Subbe Khan and Mussa standing there. All the six accused were present there, five of them except Mussa were armed with lathies. They were all beating her husband. On her cries Sardara Khan came who too was given lathi blows by Jumme, Mallu and Atru. It is said, after beating them with lathies these persons went away and she found that her husband and son both had expired. She further said that hearing cries her another son Gabbu came on the spot who was also given a lathi blow by Jumme Khan who was saved by one Nauratan. She stated that Mussa was exorting, while other accused were beating. She further said that hearing cries her another son Gabbu came on the spot who was also given a lathi blow by Jumme Khan who was saved by one Nauratan. She stated that Mussa was exorting, while other accused were beating. She did not name any eye witnesses in her examination-in-chief, but in cross examination she named Ramjilal, Aniya, Harphool, Hatti, Kesar, Mandru and Simru as eye witnesses. She named her son also as eye witness. She admitted that first three belong to different village but were known to her from before. She also stated that she had told the names of these three persons to Vijay Singh who lodged a report. She denied the suggestion that she, Mst. Dini and her other son were not eye witnesses. When asked that why she had not mentioned herself as eye-witness in the F.I.R. she stated that she had told Vijay Singh but he might have not written it. When confronted with the other parts of the report she gave a stake answer that she had told everything to Vijay Singh but he might have not written the same in the same sequence. Even about the main incident she has contradicted herself about her police statement, such as she did not mention in her report the place where Sardara was beaten. She admitted that Sub-Inspector Police had taken Hatti, Roshan and Kishan with him for interrogation and these persons returned to the village after three days. PW 6 Mst. Deeni stated that she was lying in her house when Chhajju came and took her father-in-law Dhundal and her husband Sardara to his house. Chhajju had taken them for settling the dispute about the water pump. After sometime they heard the noise and she and her mother-in-law went up to Roshans house from where she saw the accused persons inflicting blows by lathies. This fight according to her, was going on in DAGDA which was about 20 paces away from the place where she was standing. She stated that her husbands younger brother Gabbu also came on the spot and saw the incident to whom also the injuries were caused. This witness in her cross examination stated that they bad given complete details to Vijaysingh who scribed the report at their instance and they placed their thumb impressions. She stated that her husbands younger brother Gabbu also came on the spot and saw the incident to whom also the injuries were caused. This witness in her cross examination stated that they bad given complete details to Vijaysingh who scribed the report at their instance and they placed their thumb impressions. She was read over the report which she admitted to be the same which she dictated to Vijay Singh. Since the report is lacking in the details and her being an eye witness was confronted with the same and she gave similar answer to the one given by Sitabi that she had told Vijay Singh but he might have not written it in the report. PW 7 Gabbu in his statement has stated that he was in the forest where he was informed at about 2.00 by Gordhans daughter that his father and brother have been killed by Mudsa and Mussas sons so he left the goat and returned home. When he was about 20 paces away from his house Jumme Khan gave him a lathi blow. This witness has admitted that when he reached there he bad seen his father and Sardara placed on the cots. The statements of Harphool PW 12, Ramjilal PW 13 and Aniya PW 14 are to the expert that they had come to this village for purchasing mustard seed and when they enquired in the market they were informed that they can purchase the seeds from Mandru and when they went to Mandru they saw the incident. PW 2 Harphool in his cross examination admitted that he was summoned by the police after 8-10 days of the occurrence at the police station where he met Shiam Sundar S.H.O. . He admitted that he neither purchased mustard seed from Mandru nor anybody else in the village. He attributed the injury on Gabbu to Atru. This witness contradicted himself at several places with his police statement and stated that when he went to Mandru he had not seen Kesar and Hatti there. Similarly Ramjilal PW 13 admitted that the wives of Dhundal and Sardara reached the piace of occurrence when Dhundal and Sardara had already expired. He stated that he alongwith Harphool and Aniya were summoned at the police station after several days. He also admitted that he did not mention about this incident to any person in his village. Similarly Ramjilal PW 13 admitted that the wives of Dhundal and Sardara reached the piace of occurrence when Dhundal and Sardara had already expired. He stated that he alongwith Harphool and Aniya were summoned at the police station after several days. He also admitted that he did not mention about this incident to any person in his village. Similar is the admission of Aniya in his cross examination. 8. Having gone through the statements of the aforesaid witnesses we are convinced that none of them inspired confidence. According to the F.I.R. none of the aforesaid five persons were eye witnesses instead eye witnesses named in the report which had been filed without loss of time, Hatti, Mandru and Kedar Singh, Hatti and Bhadru have been with held for reasons best known and Kesar Singh has not been examined. Besides this, according to PW 3 Mst. Sitabi and PW 6 Mst. Deeni they saw the whole incident from beginning to end and Gabbu, the brother of Sardara, was also an injured and sustained injuries at the place of occurrence when he arrived there. According to both these witnesses he was an eye witness but Gabbu himself stated that he came much after his father and brother had expired. Thus the statements of these two witnesses are categorically false on a very important aspect. Not only this, Mst. Sitabi and Mst. Deeni have not named either Gabbu or Harphool and Ramji Lal or Arniya as eye witnesses either in the F.I.R. or in their statements under section 161 Cr. P. C. Their improving the statement and contradicting themselves on the important aspect of the case makes their testimony doubtful. They are interested witnesses as they are the wives of the deceased and their statements have to be corroborated in material particulars which, infact, finds contradiction from the record. According to Mst. Sitabi and Mst. Deeni all the five accused-appellants were armed with lathies and they inflicted injuries by lathies alone while according to the post-mortem report and the statement of PW 5 Rajendra Singh the injuries on the person of Dhundal were also caused by sharp edged instrument as well as pointed instruments and the injuries were caused by objects like Farsi and Tanchia. Thus, the statements of these two witnesses are clearly in contradiction to the medical evidence available on the record. No implicit reliance can be placed on their statements. Thus, the statements of these two witnesses are clearly in contradiction to the medical evidence available on the record. No implicit reliance can be placed on their statements. Regarding the statements of Harphool PW 12, Ramjilal PW 13 and Aniya PW 14 it may be mentioned that firstly they are chance witnesses, secondly their names do not find place either in the F.I.R. or in the statements of Mst. Sitabi and Mst. Deeni, thirdly their conduct is such that they did not narrate the story about their seeing the incident to anybody for 8-10 days. According to them their statements were recorded by the investigating officer for the first time after many days and lastly they have contradicted on the main incident. These three witnesses, according to the investigating officer, were available to him on the very next day of the occurrence and he recorded their statements on October 21, 1980 which is denied by them. It may be mentioned here that when the accused moved a bail application the learned Magistrate called for the case diary and he did not find their statements recorded therein. The learned Magistrate, therefore, issued a notice to the Station House Officer, Shyam Sundar, PW 23 who has now come with the defence that since the diary had become bulky he had not tagged the statements therein. The incident had taken place on October 20, 1980 the report of which was lodged on the same evening and if the statements of these witnesses had been recorded on the very next day, i.e., October 21, 1980, then the aforesaid explanation that the diary had become bulky and, therefore, their statements were not kept there that is only lame excuse. Investigating Officer, PW 2 has admitted that the statements of Ramjilal, Aniya and Harphcol were not mentioned in the F.I.R.. Then he stated that Mst. Deen and Mst. Sitabi had named these three witnesses. When confronted with the diary he stated that their names are not mentioned by Mst. Deeni and Mst. Sitabi. He admitted that he sent the diary to the court of Munsiff, Rajgarh on November 1, 1980, till then the statements of these witnesses were not in the case diary. He however, denied the suggestion that the statements are anti-dated. When confronted with the diary he stated that their names are not mentioned by Mst. Deeni and Mst. Sitabi. He admitted that he sent the diary to the court of Munsiff, Rajgarh on November 1, 1980, till then the statements of these witnesses were not in the case diary. He however, denied the suggestion that the statements are anti-dated. Be that as it may such sort of lapse in a murder case throws a serious doubt on the fair investigation of the case particularly when the whole family is sought to be implicated. In the instant case Mussa Khan is the father, while all the five accused-appellants are his sons. 9. Thus, on a re-appraisal of evidence we find that the trial court was in error in relying upon the statements of Smt. Sitabi, Smt. Deeni, Harphool, Ramji Lal and Aniya. in our opinion their statements ought to have found corroboration either with the F. I. R. or the medical evidence or some other independent evidence, which on the contrary, is clearly contradictory. It is true that a double murder case is going and punished, but while deciding a criminal case the court is to bear in mind guidelines provided by the Supreme Court in Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 637 wherein it has been held as under. "It is no doubt a matter of regret that a foul cold-blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true there; but between `may be true' and `must be true there is inevitably a long distance to travel and the whole of this distance must be' covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted". Keeping the aforesaid principle in mind when we look at the evidence, we are normally of the opinion that there is no such cogent and reliable evidence on the basis of which conviction can be maintained. 10. We are, therefore, inclined to give the benefit of doubt to the accused-appellants. Before parting with this judgement we would like to observe that the conduct of the S. I. Police, W-23, Shyam Sunder, who was then S.H.O., P.S. Rajgarh has been far from satisfactory and deserves a strong condemnation. 10. We are, therefore, inclined to give the benefit of doubt to the accused-appellants. Before parting with this judgement we would like to observe that the conduct of the S. I. Police, W-23, Shyam Sunder, who was then S.H.O., P.S. Rajgarh has been far from satisfactory and deserves a strong condemnation. In a double murder case the S.H O has tried to over-reach the courts by with-holding the statements if there were any when the case diary was forwarded on November 1, 1980. A bare perusal of the cross examination of this witness convinces either carelessness or the deliberate dishonesty on the part of this officer who has not only not maintained the case diary in accordance with law but has also not properly sealed the property recover. 11. He passed over the seals to a motbir for which there was no mention in the case diary and when confronted with the recoveries which have been made on' different dates and how he has used the two seals, he states that whenever he required he used to send it from the motbirs and would return them after use. This conduct of the investigating officer leaves an unhappy impression on our mind lesser we say about his conduct better it is. 12. In the result, we accept the appeal, set aside the judgment passed by the Additional Sessions Judge No. 2, Alwar, dated September 7, 1981 and the conviction and sentence passed against the accused-appellants. Accused Jumme Khan and Subbea Khan, are on bail. They need not surrender to their bail bonds. As for the accused-appellants, namely, Chhajju Khan, Mallu Khan and Atru Khan they are in Jail. They shall be released forthwith, if not required in any other case. *******