Judgment Ram Naresh Thakur and S.H.S.Abidi JJ. 1. Appellants Usmani Khan and Ejazul Khan along with three others were put on trial for the murder of Ram Babu Prasnd and Nagina Das After trial, appellant Ejazul Khan was found guilty under Sec.302 of the Indian Penal Code for causing the death of Ram Babu Prasad and appellant Usmani Khan was found guilty under Sec.302 read with Sec.34 of the Code and both of them were sentenced to undergo rigorous imprisonment for life. 2. Deceased Ram Babu Prasad and Satya Narain Prasad (P.W. 7) had established a Flour (Atta) Mill at Nagra Bazar within police station Jalalpur, district Saran, on the land belonging to one Umar Khan. They had taken the land from Umar Khan on a monthly rental of Rs 70/-. Ram Babu Prasad and P.W. 7 used to pay rent to Umar Khan so long he was alive. Umar Khan died about two to three years prior to the occurrence and on his death rent was being paid to the sons of Umar Khan. 3. Appellant Usmani Khan is the brother of Umar Khan and appellant Ejazul Khan is the son of appellant Usmani Khan. It is said that after the death of Umar Khan; Usmani Khan and Ejazul Khan used to demand rent of the land from Ram Babu Prasad bat he (Ram Babu Prasad) did not oblige them. On 9th April, 1981, these two appellants again demanded rent of the land from him but he did not pay the rent to them. On the same day at about 3 to 4 p m these two appellants came to their mill and told Ram Babu Prasad that they had given enough opportunity to him and if rent was not paid to them, they would kill him and after giving this threat, they went back. 4. Ram Babu Prasad used to go to his home at village Maksudpur every day in the evening. On the day of the occurrence, as usual, Ram Babu Prasad left the mill premises at about 6 p.m. along with Nagina Das on his motor-cycle. It is said that when Ram Babu Prasad along with Nagina Das was passing on canal road near [the siphon in village Rasulpur, these appellants along with others surrounded them and killed them. 5. On the day of the occurrence, as usual, Ram Babu Prasad left the mill premises at about 6 p.m. along with Nagina Das on his motor-cycle. It is said that when Ram Babu Prasad along with Nagina Das was passing on canal road near [the siphon in village Rasulpur, these appellants along with others surrounded them and killed them. 5. P.W. 7 was, at that time, at the mill in Nagra Bazar One Narain Chowkidar came and informed him that Ram Babu Prasad was lying dead near the siphon. P.W. 7 then went to the place of occurrence and found the motor-cycle belonging to Ram Babu Prasad lying there on the canal road in the west of the siphon. He also found Ram Babu Prasad and Nagina Das lying dead near the motor-cycle. Their clothes were wet with blood. 6. On the same day at about 10 p.m. PW. 13 Rameshwar Ram officer-in charge of Jalalpur police station, after hearing a rumor, came to the place of occurrence and recorded the statement of P.W. 7 Satya Narain Prasad at that very place, which is Exhibit 7. On the basis of Exhibit 6, formal first information report was drawn up which is Exhibit 7 and P.W. 13 took up the investigation. 7. After due investigation, charge sheet was submitted against these two appellants and three other persons. In the trying court. 13 witnesses were examined on behalf of the prosecution The appellants denied the allegation and examined two witnesses in their defense. After considering the entire evidence, these two appellants were convicted of the charges leveled against them. 8. Learned Counsel appearing for the appellants has argued that the learned trying court did not appreciate the evidence properly and, therefore, it came to a wrong conclusion According to him, no reliance should have been placed on the evidence of the witnesses. 9. The fact that Ram Babu Prasad and Nagina Das died of injuries does not admit of any doubt Dr. Gauri Shankar Prasad Sinha (P.W. 9) conducted the post-mortem examination on the dead bodies of Ram Babu Prasad and Nagina Das on 10th April, 1981, at 10-30 a.m. and 11-00 a.m. respectively. He found the following ante-mortem injuries on their persons: Ram Babu Prasad: (i) Punctured wound 1 3/4" X 1/2"X cavity on the left side chest, close to nipple. Gauri Shankar Prasad Sinha (P.W. 9) conducted the post-mortem examination on the dead bodies of Ram Babu Prasad and Nagina Das on 10th April, 1981, at 10-30 a.m. and 11-00 a.m. respectively. He found the following ante-mortem injuries on their persons: Ram Babu Prasad: (i) Punctured wound 1 3/4" X 1/2"X cavity on the left side chest, close to nipple. (ii) Punctured wound 1 3/4" X 1/2"X cavity on the left side chest, half inch lateral to the left nipple. (iii) Punctured wound 2"X1/2"X cavity on the epigastria region. (iv) Punctured wound 11/2"X1/2"X cavity on the right side chest lateral to right nipple. (v) Punctured wound 21/2"x3/4"x cavity with protrusion of intestine on the right side abdomen on the right iliac fosse. (vi) Punctured wound 1 3/4"X1/2"X cavity on the right side chest on the right flank in the mid auxiliary line. Nagina Das: (i) Cut wound 3"x1/4"x bone deep on the left side back of head. (ii) Punctured wound 11/2"X1/2"X cavity on the left side chest. (iii) Punctured wound 11/2X(sic)"X cavity on the right side chest, lateral to right nipple. (iv) Punctured wound 3/4"X1/2"X cavity close to thyroid gland at its lower aspect. (v) Swelling 3"x2" with a bruise on the right side neck. (vi) Bruise 2"x1/2" on the right side back on the scapular region. (vii) Abrasion 2"X1/2" on the left hip. The injuries found on the person of deceased Ram Babu Prasad were caused by sharp pointed weapon and were grievous in nature. According to P.W. 9 the injuries were sufficient to cause death in the ordinary course of nature and the time elapsed from death till post-mortem examination was 18 hours. In the opinion of the doctor, injuries No. (i) to (vi) on the person of deceased Nagina Das were caused by sharp pointed and sharp cutting weapon and injuries No. (v) to (vii) were caused by hard blunt substance. Age of the injuries was within 18 hours of the post-mortem examination and death was due to hemorrhage and shock especially caused by injury No. (ii) which had penetrated the left lung, There is also oral evidence to corroborate this fact Therefore, we find and hold that both the deceased died of injuries which they sustained. 10.The question which now remains to be considered is whether the two deceased persons were done to death by the appellants in the manner alleged by the prosecution. 10.The question which now remains to be considered is whether the two deceased persons were done to death by the appellants in the manner alleged by the prosecution. 10 Out of 13 witnesses examined on behalf of the prosecution. P.W. 5 is the only eye-witness of the occurrence and P.W. 3 Amir Hasan had seen appellant no. 2 along with others running away from the scene of occurrence (he has not claimed to have seen appellant no. 1 running away). The informant came on hearing the news. Similarly P. Ws 1 and 2 are not eye-witnesses and they have stated about some facts to connect the appellants with the crime in question Let us, therefore, consider first the evidence of P.W. 5 who claims to be the eye-witness of the occurrence. P.W 5 on the alleged date and time of the occurrence, was returning from Nagra Bazar to his home and he was passing through the same fateful road A motor-cycle carrying both the deceased passed through him and went towards west. He was also going towards the west. Soon thereafter he heard some sound. He hurried towards that direction and saw five to six persons around the motor-cycle He (P.W. 5) stayed there. He saw that one man had caught Nagina Das and other man was assaulting him with a dagger but he did not identify them. According to him appellant Usmani Khan had caught hold of Ram Babu Prasad and appellant Ejazul Khan gave him dagger blows; and thereafter all persons fled away towards the east. Ram Babu Prasad and Nagina Das fell down and breathed their last. P.W. 5 ran to village Bangra and then again he returned to the place of occurrence along with eight to ten persons of Bangra, On the next day he gave his statement to the police. Both the deceased persons belonged to village Maksudpur which is at a distance of one mile from his village, Village Bangra is about half a mile west of the place of the occurrence, At village Bangra he disclosed to Sheo Dayal, Chandra Sharma, Hari Shanker Singh and others about the occurrence including the names of the appellants but none of them has been examined in this case. Nobody had come to the place of occurrence when he had left for village Bnngra at the first instance He did not go to the house of the deceased to inform about the murder He did not even go to Nagra Bazar to inform the informant about the occurrence nor did he take any step himself to inform the authorities about the ghastly murders. 11. P.W. 7, the informant, has said that one Narain Chowkidar came to his mill and informed him that Ram Babu Prasad was lying dead. P.W. 1 also has said that Narain Chowkidar told him that Ram Babu Prasad and Nagina Das had been killed. But that Narain Chowkidar has not been examined. P.W 13, the investigating officer, has said on 9th April 1981, he heard a rumor at the police station that two persons had been murdered on the canal road near the siphon and on that rumor he reached the place of occurrence at 10 p m. No doubt he was not cross-examined as to whether that rumor was entered into the station diary, but the fact remains that whenever such rumor is received by the officer-in charge, that should be entered in to the station diary. Unfortunately, the station diary of the police station has not been brought on the record. P.W. 13 also does not say as to how and from whom he heard the rumor. If all the aforesaid evidence is judged in the totality with strict security we find that evidence of P.W. 5 is not reliable to base the conviction of the appellants. Though he claimed to have seen the occurrence with his own eyes, surprisingly enough, he did not take care to inform the family members of the deceased or to inform P.W. 7 or even to inform the police authority. He has said that he went to village Bangra and informed some of the villagers about the occurrence but none of them has come to support this fact. Further, this witness has himself stated in his examination-in-chief that he had given his statement before a Magistrate in favor of accused Gautam who has been acquitted by the trying court. In view of aforesaid conduct of P.W. 5, it is very difficult to place any reliance on his evidence. Further, this witness has himself stated in his examination-in-chief that he had given his statement before a Magistrate in favor of accused Gautam who has been acquitted by the trying court. In view of aforesaid conduct of P.W. 5, it is very difficult to place any reliance on his evidence. No doubt two persons were killed in a very brutal manner bet we have to be guided by the legal evidence that is brought on the record. Unfortunately, P.W. 5 is the solitary eye-witness of the occurrence, who, for the reasons stated above, cannot be relied upon. 12. P.W. 1 has come to say about the previous conduct of the appellants just before the occurrence. In cross examination he has admitted that appellant Usmani Khan had filed a criminal case against him and others for committing assault which was pending on the date of his evidence. One Phoolgeni Khan had brought a criminal case against Usmani and Ejazul in the year 1980 before this occurrence and he was a witness for Phoolgeni against these two appellants. Deceased Ram Babu Prasad had purchased some land on which he had set up Aara machine and in that kebala he was attesting witness. 13. Once the evidence of P.W. 5 is not accepted, the evidence of other witness in respect of earlier incident in which there was altercation between deceased Ram Babu Prasad on the one hand and these two appellants on the other, for realisation of rent, would not, even if proved, go to establish that these appellants had murdered these two deceased. As said above, when the evidence of P.W. 5 is not relied upon, it is not necessary to discuss the evidence in detail. 14. It is said that a blood stained bush-shirt was recovered from the house of appellant Usmani Khan. From the evidence of P W. 13 it would appear that on 10th April, 1981, he had searched the house of appellant Usmani Khan and Ejazul Khan but be has not said that anything was recovered on that date. Again on 23rd April, 1981, he had searched the house of Ejazul Khan and then it is said that a blood-stained bush shirt was recovered from his house, the seizure list of which is Exhibit 8.2. He has admitted in cross-examination that appellants Usmani Khan and Ejazul Khan and accused Mansoor Khan live in a common house. Again on 23rd April, 1981, he had searched the house of Ejazul Khan and then it is said that a blood-stained bush shirt was recovered from his house, the seizure list of which is Exhibit 8.2. He has admitted in cross-examination that appellants Usmani Khan and Ejazul Khan and accused Mansoor Khan live in a common house. There is also nothing to show that any of the appellants was present at the time when the aforesaid shirt was seized. This piece of evidence also, therefore, will not connect the appellants with the crime in question. 15. Accordingly, the appeal is allowed and the order of conviction and sentence passed against the appellants is set aside.