JUDGMENT 1. - This appeal is directed against the judgment dated April 18, 1980 passed by the learned Additional Sessions Judge, No. 2, Hanumangarh. By that judgment the learned Judge convicted the appellant Maniram under section 302 IPC and Patram and Surjaram urs.302 read with section 109 IPC and sentenced them each to imprisonment for life and fine of Rs. 500/-, in default of payment of fine to undergo one year RI. Maniram was also convicted under section 342 IPC and 27 of the Arms Act and was sentenced to six months RI and a fine of Rs. 500/-, in default to undergo two months RI on Vie first count and two years RI and a fine of Rs. 500/-, in default to under-go one years RI on the second count. Patram was also convicted under section 25(1) (a) of the Arms Act and sentenced to one years RI and a fine of Rs. 200/-, in default to undergo two months RI. The substantive sentences on the various counts awarded to Maniram and Patram were ordered to run concurrently. 2. Briefly stated the facts of the case giving rise to the trial of the appellants, their conviction and sentences and the present appeal are as under. The three appellants are real brothers. Shankerlal another brother of the appellant died seven or eight years prior to the incident of the death of Tulchhi and Bhika. Shankerlal left behind him his wife Tulchhi, one daughter and one son Jagga (a) Jagdish (PW 9) about ten years old. Jagga used to live at his maternal grand-father's house and some times used to go to his mother who was residing at village Mala Rampura in the house of her deceased husband. Tulchhi is said to have developed illicit relations with Bhika deceased and that created annoyance to her husband's family including the three appellants. On August 14, 1978 at about eight or nine P.M. there was some noise at the house of Tulchhi. On hearing the noise Sohanlal, Kartarsingh, Ramswaroop went there. Meanwhile Maniram also reached there and enquired from Jagdish as to who was there inside the house. Jagdish replied that it was his mother. Maniram then went inside the house. Bhika Ram who was standing in the court-yard went inside the room. Maniram closed the door and bolted it. He asked Jagga to call Pat-ram. Meanwhile Maniram also reached there and enquired from Jagdish as to who was there inside the house. Jagdish replied that it was his mother. Maniram then went inside the house. Bhika Ram who was standing in the court-yard went inside the room. Maniram closed the door and bolted it. He asked Jagga to call Pat-ram. Patram went there with the lathi and Maniram and Patram belaboured Tulchhi with lathis. The `sini of Patram also retched there and was asked by Maniram to call Surjaram. Surjaram went there and enquired from Tulchhi as to whether she had called Bhikha or he had come of his own accord. Thereafter Maniram and Patram asked Surja to bring Gopiram, father of Tulchhi. Maniram asked his son Nathu, standing nearby, to bring his double barrel gun and bag of cartridges. Nathu did accordingly. About two hours after that Gopiram (PW 7) father of deceased Tulchhi and her cousin Hansraj (PW 12) came there in a tractor. Maniram reprimanded Gopiram regarding his daughters character and told him that they would kill both of them. Gopiram expressed disinterestedness and stated that they may do whatever they like. Gopiram went at a distance from there with Hansraj. Surja and Patiram instigated Maniram to fire the shot. Maniram fired the shot at Tulchhi. Thereafter Surja and Patram asked Bhika to open the door from inside but Bhika did not reply. Patram and Surja decided to take off the leaves of the door and Maniram told that in case he does not open the door, the room may be set at fire with kerosene oil. At that Bhika opened the door and tried to run away from there. Maniram fired the shot at Bhika and Bhika fell down. The appellants then went to the place where Gopiram (PW 7) was sitting and told him that they had killed both of them. Gopiram (PW 7), Jagdish (PW 9), Hansraj (PW 12) and Surja went to the 'dhani' of Hanuman, in the tractor in which Gopiram had come. Surja awoke Hanuman and told that murders have been committed and he may accompany them to Sangaria. Meanwhile M iairam also reached there. Surja and Maniram along with Hanuman left the police for Sangaria. Gopi Ram, Hansraj and Jagdish went to Gopiram's village Bishanpura. Surja awoke Hanuman and told that murders have been committed and he may accompany them to Sangaria. Meanwhile M iairam also reached there. Surja and Maniram along with Hanuman left the police for Sangaria. Gopi Ram, Hansraj and Jagdish went to Gopiram's village Bishanpura. At about 5.30 A.M. on August 15, 1978 Maniram lodged the report at Police Station Sangaria to the effect that Patiram had committed the murder of Tulchhi and Bhikaram with his (Maniram's) licenced gun and he had come to lodge the report. Iqbalsingh (PW 5), ASI of Police Station Sangaria recorded the information Ex. P 20 and registered the case under section 302 IPC and 27 of the Arms Act. Iqbalsingh (PW 5) went to the site with Dy. S.P. Narayanprasad on August 15, 1978. The Dy. S.P. inspected the site and prepared the site plan and the site inspection memo. He also prepared the inquest reports of the dead bodies. Four pellets and one wad were taken from near the dead body of Tulchhi and sealed. Blood soaked earth and control soil were taken from the site. Mahendrasingh (PW 8), AS1 of that Police Station was also there. Mahendrasingh arrested accused Patram and from his possession took double barrel 12 bore gun along with four live and five dead cartidges. He entrusted the packets to the Dy. S.P. Maniram and Surjaram were arrested later on August 20, 1978. Maniram furnished information Ex. P 34 getting recovered one empty cartridge of 12 bore gun from behind, the residential kotha of his brother Patram's wife concealed in the heap of grass, Maniram got the empty cartridge recovered from behind the one kotha of Tulchhi deceased which, was taken in possession vide memo Ex. P 28. Maniram produced the licence of the 12 bore gun. 3. Dr. Bhimsingh (PW 6), Medical Officer, Incharge PHC, Sangaria conducted the postmortem examination of Tulchhi at 11.30 A.M. and noted two entry wounds of gun shot, one on thoracic cavity and the other on abdominal cavity. On dissection of the cavity pleurae and left lung, pericardium and liver were found crushed. 5th and 6th ribs were fractured. 20 pellets and 6 wads were recovered from right thoracic cavity and 15 pellets and 2 wads from left thoracic cavity. The cause of death was haemorrhage and respiratory failure and shock due to injury to lung, heart and liver. 5th and 6th ribs were fractured. 20 pellets and 6 wads were recovered from right thoracic cavity and 15 pellets and 2 wads from left thoracic cavity. The cause of death was haemorrhage and respiratory failure and shock due to injury to lung, heart and liver. According to the Doctor, the duration of death was 18 hours from the time of postmortem. The postmortem examination report is Ex. P 22. 4. On the same day at 1.30 P.M. Dr.Bhimsingh conducted postmortem examination of Bhikaram and found two entry wounds of gun shot in the thoraic cavity. There was one exit wound on the right side of back, 2" below right scapular region. He found pleurae of both sides, injured right lung, pericardium and heart ruptured. Four pellets and nine wads were taken out from the body. The cause of death was due to haemorrhage and, respiratory failure due to injury to the heart and both caused by firearm. The duration of death was within 20 hours of the time of the postmortem examination. The postmortem examination report is Ex. P 21. The blood smeared clothes of the deceased were sent or Chemical Examination. The report of the Chemical Examiner is Ex. P 37 and that of the Serologist is Ex. P 39. The guns, cartridges, wads and pellets were sent for ballistic test. The report of the Forensic Science Laboratory Rajasthan, Jaipur is Ex. P 38. The opinion of the Ballistic Expert was that the empty cartridges had been fired by the gun under test and lead pellets are normally used in 12 bore cartridges. 5. Upon completion of necessary investigation, charge sheet against the appellants was filed in the Court of Judicial Magistrate, Hanumangarh. The learned Magistrate finding a prima facie case exclusively triable by the Court of Sessions committed the appellants to the Court of Additional Sessions Judge, No. 2, Hanumangarh to stand their trial there. The learned Additional Sessions Judge. charge sheeted the appellants and on their denying the indictments proceeded with the trial, 15 witnesses were examined by the prosecution to substantiate its case. The appellants in their statements under section 313 of the Code of Criminal Procedure totally denied the allegations levelled against them. No defence witness was examined. The learned trial Judge placed reliance on the evidence of the prosecution witnesses and passed the judgment under appeal. 6. We heard Mr. The appellants in their statements under section 313 of the Code of Criminal Procedure totally denied the allegations levelled against them. No defence witness was examined. The learned trial Judge placed reliance on the evidence of the prosecution witnesses and passed the judgment under appeal. 6. We heard Mr. Bhagwatiprasad, learned counsel for the appellants and Mr. L.S. Udawat, learned Public Prosecutor for the State and carefully examined the record of the case. 7. Prosecution has led direct as well as circumstantial evidence in the case. The direct evidence is of Gopiram (PW 7). Jagdish (PW 9) and Hans-Raj (PW 12). The circumstantial evidence is the recovery of 12 bore gun and bag containing empty and live cartridges from Patram and one empty cartridge at the instance of Maniram. 8. Learned counsel for the appellants strenuously contended that from the statements of the three eye witnesses it can be deduced that they were not present at the site at the time of the incident. Mr. B.R. Arora, stressed that no criminal would commit the blunder of calling persons, specially the father and cousin of the victim, to create evidence against him. Retarding Jagdish (PW 9), the contention of the learned counsel is that Smt. Tulchhi had two issues, a daughters aged about 12 years and a son Jagdish aged about ten years. That the children were living with their maternal grand father. From the statements of Jagdish (PW 7) taken together with that of other witnesses it cannot be believed that in the fateful night he was with his mother. Learned counsel for the appellant's laid much emphasis on the important prosecution witnesses Gopiram (PW 7) and Hansraj (PW 12) is not going to the Police Station and stating the true facts. The delay in recording the statements of the three eye witnesses has also been pointed out to be a serious infirmity in the prosecution case. 9. The learned Public Prosecutor justifying the conviction of the appellants submitted that even if Jagdish (PW 9) might be living with its maternal grand father, possibility of his being with his mother in that night cannot be ruled out. 9. The learned Public Prosecutor justifying the conviction of the appellants submitted that even if Jagdish (PW 9) might be living with its maternal grand father, possibility of his being with his mother in that night cannot be ruled out. He contended that because Maniram had gone to lodge the report to the Police, Gopiram (PW 7) might not have thought it necessary to approach the Police and Police might have recorded the statements of the witnesses with delay because of their living at a different village. 10. At the very outset it may be observed that Sohanlal (PW I) and Ramswaroop (PW 2) the neighbourers of deceased Tulchhi have expressed their ignorance about the actual occurrence and for that reason were declared hostile. The prosecution case therefore, rests on the testimony of Gopiram (PW 7), Jagdish (PW 9) and Hansraj (PW 12). Gopiram (PW 7) is the father of deceased Tulchhi, Hansraj (PW 12) her cousin and Jagdish (PW 9) her son. Gopiram resides at village Bishanpura. Gopiram stated that Surja went to him in the night of the occurrence and took him to Malarampura telling him that there was some important work. That, he took Hansraj (PW 12) his nephew and went in a tractor with Surja to village Malarampura and reached there at 12.00 in the night. While narrating the facts of the case we have made a reference to the talk which transpired between Surja and the witness about Tulchhi's character. The witness has stated about the firing of the shots by Maniram resulting in his daughter's death as well as that of Bhikaram Similar are the statements of Hansraj (PW 12) and Jagdish (PW 9) Though on the face of it, it appears strange that Maniram might have sent Surja to Bishanpura to inform his father Gopiram (PW 7) that his daughter was leading an unchaste life. But cases are not rare in which the family members, annoyed with the unchaste life of a lady, bring it to the notice of her relatives. However, if three appellants were bent upon doing away with the life of Tulchhi and Bhikaram they could have done so even without informing Gopiram and seeking his presence so as to nature against them at the trial. However, if three appellants were bent upon doing away with the life of Tulchhi and Bhikaram they could have done so even without informing Gopiram and seeking his presence so as to nature against them at the trial. Be it as it may, the presence of Gopiram (PW 7) and Hansraj (PW 12) at the time cannot be easily believed and their statements are to be judged by checks available on the record. The driver of the Tractor in which these witnesses are said to have gone to village Malarampura has not been examined. The learned Public Prosecutor does not consider him that to be a material witness but in order to substantiate the prosecution case that these two persons really went from village Bishanpura to village Malarampura in the company of Surja, the tractor driver assumes importance. 11. Gopiram (PW 7), Jagdish (PW 9) and Hansraj (PW 12) have given inconsistent statements about the place where Hansraj and Gopiram were at the time of the firing of gun shots. But these are petty points and if the presence of these witnesses at the time of occurrence is otherwise believed such minor inconsistencies would not affect their credibility. The most important fact is about Gopiram and Hansraj going to the 'dhani' of Hanuman after the occurrence. Gopiram has stated that he, Jagdish (PW 9), Hansraj and Surja had gone to Hanuman's `dhani' in the same tractor in which they had come from village Bishanpur to Malarampur. If the tractor was the same then the tractor driver must have been present at the hone of the incident and being an independent witness could have thrown light on what had exactly transpired there. Gopiram further stated that thereafter Maniram also reached Hanuman-ki-dhani and Surja and Mani-ram along with Hanuman left that place telling that they were going to Sangaria. The witness further stated that he, Hansraj and Jagdish there-after went to Bishanpura. Hansraj (PW 12) has also stated about himself, Gopiram, Jadish and Surja and the driver of the tractor going to Hanuman-ki-dhani. He has also stated that Maniram also reached there and asked Hanuman to go to Sangaria and then his going away from there with Surja and Hanuman. Hanuman was an important witness in the case. Hansraj (PW 12) has also stated about himself, Gopiram, Jadish and Surja and the driver of the tractor going to Hanuman-ki-dhani. He has also stated that Maniram also reached there and asked Hanuman to go to Sangaria and then his going away from there with Surja and Hanuman. Hanuman was an important witness in the case. If examined, he could have thrown light on the point whether Hansraj and Gopiram in the company of Surja had gone to his 'dhani' and if so what they told him. He could also be in a position to say that Maniram took him to the Police Station. As we would discuss presently Gopiram (PW 7) and Hansraj (PW 12) had given different versions for their not going with Maniram to the Police Station. If Hanuman would have been examined he could have said as to whether Gopiram (PW 7) and Hansraj were willing to go to the Police Station and Maniram had asked them not to go. Failure of the prosecution to examine Hanuman taken together with the omission of this part of the story in the statement of Jagdish and this being specific that after the incident he alongwith his maternal grand father and maternal uncle went to village Bishanpura raises a suspicion regarding the presence of Gopiram (PW 7), Jagdish (PW 9) and Hansraj (PW 12) at the time of the incident. 12. The learned trial Judge declined to place reliance on the testimony of Hansraj (PW 12) and his presence at the site in the fateful night for the reason that Gopiram (PW 7) in his Police statement did not state about Hansraj being with him. If Hansraj's presence was disbelieved there is also reason for not relying on the testimony of Gopiram. We would presently discuss the infirmities in the statements of these two witnesses viz. Gopiram (PW 7) and Hansraj (PW 12) such as their failure to lodge the report before the Police after such henious crime being committed in their presence and the delay in recording their statement. 13. Jagdish (PW 9) is a boy of about ten years of age. The prosecution case is that Smt. Tulchhi had one daughter about twelve years of age and elder to Jagdish. It is nobody's case that the daughter was there at the house of the deceased Tulchhi. 13. Jagdish (PW 9) is a boy of about ten years of age. The prosecution case is that Smt. Tulchhi had one daughter about twelve years of age and elder to Jagdish. It is nobody's case that the daughter was there at the house of the deceased Tulchhi. The learned counsel for the appellants strenuously argued that the two children were living with their maternal grant father at Bishanpura and Jagdish was not present there in the night of the occurrence but has been introduced as an eye witness. Statement of Jagdish (PW 9) will have to be looked with reference to the statements of Gopiram (PW 7) and Hansraj (PW. 12) because Jagdish had stated that he had left the house with Gopiram (PW 7). We would first deal with the argument of the learned counsel for the appellants regarding the silence on the part of the three important witnesses of the prosecution for lodging the report. 14. So far as Jagdish is concerned, suffice it to say that he being a child could not be expected to lodge the report before the Police. His statement raises suspicion mainly because of the delay in recording his police statement which we would discuss at appropriate place. Gopiram (PW 7) and Hansraj (PW 12) have stated that both of them along with Surjaram went in a tractor in which they had came from Bishanpura to the `dhane of Hanuman and narrated the incident. According to these two witnesses Maniram also reached there and he, Surja and Maniram left the `dhani' for Sangaria. Gopiram has stated that for sometime he and his companions remained sitting there and when it was dawn he, Jagdish and Hansraj returned to their village. Bishanpura is only at a distance of 15-16 miles from Sangaria.Gopiram (PW7) being the father of Smt.Tulchhi in the natural course of events would have gone to the Police Station to lodge the report specially when he claims to have seen Maniram firing the shots. This was all the more necessary when according to Hansraj (PW 12), Maniram and Surja in their presence bad told at the 'dhani' of Hanuman that they would tell about the gun being that of Patram and he and Surja would initiate the proceeding at the Police. Gopiram does not state so. This was all the more necessary when according to Hansraj (PW 12), Maniram and Surja in their presence bad told at the 'dhani' of Hanuman that they would tell about the gun being that of Patram and he and Surja would initiate the proceeding at the Police. Gopiram does not state so. If Hansraj had heard so, he should have objected to such a false report being lodged and if be had any reason for not objecting to it at the time, he should have gone to the Police Station and lodged the correct report. Whereas Gopiram has not stated about his expressing a desire to accompany Maniram, Surja and Hanuman to the Police Station. Hansraj's version is that he and Gopi told Maniram and Surja that they would accompany them to the Police Station at which Maniram told them that he will shoot them and directed them to go to their village and they therefore returned to their village. Jagdish (PW 9), as stated earlier, has not stated about himself, Gopiram and Hansraj along with Surja going to Hanuman-ki-dhani. If Jagdish had gone with Gopiram at Hanuman-ki-dhani, he must have stated so. 15. The evidence of a child witness is always to be taken with I caution because he is prone to narrate what he had been tutored. The learned counsel for the appellants submitted that the children move in imaginary world. Jagdish being aged 10-12 years of age cannot be said to be a child of such a tender age so as to live in imaginary world, but his understanding may he taken to be mature to the extent that he may agree to help the prosecution and narrate at the instance of his maternal grand father with whom he admittedly was residing at the time of his statement at the trial and was accompanied by him to the Court. The another important check available about Jagdish and Gopiram is that Gopiram states that as the tractor went wrong while going to the `dhani. of Hanuman, he, Jagdish and Hansraj went on foot to Bishanpura. Jagdish does not state about the tractor going wrong rather states that after the incident he, Hansraj and Gopiram went from Malarampura to Bishanpura. The another important check available about Jagdish and Gopiram is that Gopiram states that as the tractor went wrong while going to the `dhani. of Hanuman, he, Jagdish and Hansraj went on foot to Bishanpura. Jagdish does not state about the tractor going wrong rather states that after the incident he, Hansraj and Gopiram went from Malarampura to Bishanpura. We would have given consideration to the argument of the learned Public Prosecutor that presence of Hansraj, Gopiram and Jagdish should not be discarded on the discrepancies if their failure to lodge the report before the Police and (sic) recording the statements of such important eye witnesses would not (sic) importance in the given circumstances of the case. 16. The incident took place in the intervening night of 14 and 15th of August, 1978. The FIR was lodged by Maniram on 15th morning. The Investigating Officer had conducted the investigation at the site on that day. Gopiram (PW 7) was examined on August 19, 1978 and Hansraj and Jagidsh on August 21, 1978. The argument of the learned Public Prosecutor is that as investigation had commenced on the information of appellant Maniram, the SHO might not be knowing that Gopiram, Jagdish and Hansraj were the eye witnesses to the occurrence. Bishanpura is not very far from Malarampura and according to the prosecution it took only about two or three hours in Surjaram going to Bishanpura and returning with the witnesses to reach Malarampura. Police Station Sangaria is only 15-16 miles away from village Bishanpura. If Jagdish, Gopiram and Hans-Raj were important witness then who so ever the Investigating Officer might be, it was necessary for him to give priority to the examination of these three eye witness. The contention of the learned Public Prosecutor that the Investigating Officer might not be knowing about the three persons being the eye witnesses prior to 19th and for that reason he might not have recorded their statements looses its force from deposition of the Investigating Officer himself. Dr. S P. Narayanprasad (PW 14) has stated that name of Jagdish was there in the FIR lodged by Maniram. Gopiram was named by some mukhbir' and name of Hansraj was disclosed by the accused when interrogated and that Gopiram also informed about him. They Dy. Dr. S P. Narayanprasad (PW 14) has stated that name of Jagdish was there in the FIR lodged by Maniram. Gopiram was named by some mukhbir' and name of Hansraj was disclosed by the accused when interrogated and that Gopiram also informed about him. They Dy. S.P. has specifically stated that he come to know about Gopiram and Jagdish being the witnesses on August 15, 1978 itself and for Hansraj on August 19, 1978. It has been stated by the Investigating Officer that Hanuman was interrogated but his statement was not recorded. If Hanuman would have supported the prosecution case coming forth from the statements of Gopi Ram (PW 7) and Hansraj, the Investigating Officer would not have neglected recording his statement and would have ascertained as to whether Gopiram and Hansraj had really gone to his `dhani in the night of the occurrence. If name of Jagdish was known to the Investigating Officer on 15th and Hans-Raj on 19th, there was no reason for him not to examine Jagdish atleast on August 19, 1978, when Gopiram was examined. There is no explanation from the prosecution side as to why Jagdish was not examined prior to August 21, 1978. If Jagdish would have been examined at an early date, the prosecution case about his being present in the night of occurrence could have been believed. The very fact 01 the witnesses not being examined for six days after the incident, despite his grand father with whom he was living, being examined on Aug. 19, 1978, is sufficient to raise a doubt about Jagdish being an eye witnesses to the occurrence. I Hansraj (PW 12) was living near the house of Gopiram & Gopiram claims to have taken him to Malarampura in the night of the incident and had such a faith in Hansraj, in the natural course of events he should have also taken him to the Police Station for recording his statements prior to August 21, 1978. An important factor to be noted is that, Gopiram examined by the Police on 19th was produced before the Magistrate on 21st for his statement tits. 164 of the Code of Criminal Procedure being recorded. Ordinarily statement of witnesses under section 164 of Code of Cr. PC are got recorded when the Investigating Agency has some suspicion about the witness being tampered with. 164 of the Code of Criminal Procedure being recorded. Ordinarily statement of witnesses under section 164 of Code of Cr. PC are got recorded when the Investigating Agency has some suspicion about the witness being tampered with. There could not be and apprehension in the mind of Investigating Officer for Gopiram, father of deceased Smt. Tulchhi changing his version and therefore, there is strength in the contention of the learned counsel for the appellants that Gopiram was not really an eye witness and therefore, Investigating Agency by getting his examined on oath wanted to bind him so that he may not resile from the Police Station later on. The unexplained inordinate delay in recording the statements of Gopiram, Hansraj and Jagdish coupled with failure of Gopiram and Hansraj to lodge the report, the discrepant statements of the three eye witnesses on material points raises a doubt in our mind about the truthfulness of their deposition. 17. Prosecution has not cared to examine three important independent witnesses in the case viz. Hanuman, 'siri, of Patram who is said to be present at the site and the driver of the tractor in which Gopiram and Jagdish are said to have gone from village Bishanputa to Malarampura and from there Hansraj and Gopiram along with Maniram, Jagdish and Surjaram are said to have gone to Hanuman-ki-dhani and as stated by Jagdish from Malarampur to Bishanpura. The 'siri' could have told what had transpired at the site. The tractor Driver could have stated as to whether Hansraj and Gopiram had at all gone to Bishanpur and whether Jagdish was there with them while returning. Hanumanram and the driver could also told whether Surjaram had accompanied Gopiram and Hansraj to Hanuman-ki-dhani where Gopiram and Hansraj have claimed to have gone with Jagdish and Surjaram. If such facts could be substantiated by the evidence of the driver, an independent person, the prosecution case that Gopiram and Hansraj had gone to Malarampura in that night and immediately after the occurrence they and Surjaram had narrated the incident to Hanumanram could be believed. Hanumanram if examined could have also told as to where he, Maniram and Surjaram had gone from his 'dhani' and what happened thereafter and what was the reason for Gopiram and Hansraj not going to Sangaria to lodge the report. Hanumanram if examined could have also told as to where he, Maniram and Surjaram had gone from his 'dhani' and what happened thereafter and what was the reason for Gopiram and Hansraj not going to Sangaria to lodge the report. The infirmities in the prosecution case discussed above constrain us to discard the evidence of I Hansraj, Jagdish and Gopiram regarding the incident. 18. The direct evidence having been this disbelieved we are left with the circumstantial evidence of the recovery of the licenced gun of Maniram from Patram and the bag containing live and dead cartridges. The circumstance has little value against the appellants. The Investigating Agency was set at motion at the information furnished by Maniram. The Investigating Officer had proceeded under the impression, that Maniram and Gopiram bad nothing to do with the crime and it was Patram who was responsible for the murders. In the memos prepared at the site, Maniram was taken as one of the motbirs. Ex. P 23 date 15-8-1978 is the arrest memo of Patram. Maniram and Gurucharansingh are the motbirs of the memo. Maniram being subsequently arrested in the case as an accused, the only motbir was Gurucharansingh. Gurucharansingh (PW 4) has not supported the prosecution case. He has expressed his ignorance about the Police going to the place where Smt. Tulchhi and Bhikaram were murdered. He has only stated that he was called at the Police Station and his signatures were taken on a number of papers. He was declared hostile by the prosecution. In cross-examination by the Public Prosecutor he categorically denied the fact of the Police taking anything in its possession. According to the learned Public Prosecutor, Maniram was the main accused but he went to the Police Station to lodge the report and had given gun to Patram and therefore, the recovery of the gun and the bag containing the cartridges assume importance. By the very fact of the gun not being with Maniram and his lodging the report falsify the prosecution case brought on record subsequently that Maniram was the main accused, we decline to attach any importance to the recovery of the gun and the cartridges, even if any, from Patram against any of the appellants. One circumstance against appellant Maniram is that one empty cartridges was recovered in pursuance of the information furnished by him. One circumstance against appellant Maniram is that one empty cartridges was recovered in pursuance of the information furnished by him. It is pertinent to note that information furnished was that the empty cartridge was behind the 'Kotha' of Patram's wife. The Investigating Officer admitted that empty cartridge could not he recovered from the place mentioned in the information but was recovered from behind the Kotha' of Smt. Tulchhi. There is no evidence to connect the gun or the cartridges recovered with the commission of the crime. Hence the circumstantial evidence brought on record also does not help the prosecution. 19. In view of the above discussion, we find ourselves unable to agree with the learned trial Judge that prosecution had succeeded in bringing home the guilt against any of the appellants beyond all shadow of reasonable doubt. 20. Consequently, the appeal filed by Maniram, Patram and Surja Ram is allowed. Their conviction and sentences are set aside and they are acquitted of the charges. Appellant Patram and Surjaram are on bail. Their bail bonds stand discharged. Appellant Maniram is in Jail. He shall be set at liberty forthwith if not required in any other case.Appeal Allowed. *******