JUDGMENT 1. - The twelve appellants before me have been convicted by the learned Additional Sessions Judge No. 2 Dholpur, in Sessions Case No. 21/1979, for offences Under Section s 302, 326, 325, 324, 323, read with Section 149 of the Indian Penal Code. The appellants Sriya and Rasham have been convicted for the substantive offence of Section 302 IPC and also Under Section 27 of the Arms Act. They have been sentenced to various terms of imprisonment including life imprisonment for the offence Under Section 302 or 302 read with Section 149 IPC. A fine of Rs. 200/- was also imposed on each of them and in default of payment of fine to undergo one month's rigorous imprisonment. At the same time, three persons, namely, Rameshwar, Heta and Mohan Singh were acquitted for all the offences. The twelve appellants have preferred this appeal against their aforesaid conviction. 2. The facts leading to the case are that on March 16, 1976, at 3.0 p.m., Gangaram s/o Sunder Lal lodged a First Information Report at the Police Station, Sapau. The contents of the First Information Report are that on the after noon at the same day, he along with his brother Sonkhia and one Ramie were cutting Sarson, in their field, known as 'DAGARGARIA', then at that time all the fifteen accused came from the side of Puro. He gave the names of twelve persons and said that he did not recognise 2-3 other persons. All of them were kachis belonging to Tehri. They came, armed with lathies, balom, farsa and guns and Rasham told to catch hold of Sonkhia. Chiranji accused had Balam, Sriya had a gun, Shobha had a farsa and others had lathies. Rasham and Mangal accused gave blows with lathies while Chiranji gave a blow with balam and Sriya fired at Sonkhia. Others gave lathi blows with the result that Sonkhia died on the field itself and Ganga and Ramie ran way from there. After this, it was mentioned that some persons killed one Niroti in his field and at that time when Niroti was killed, the incident was witnessed by Shyam Lal and Ramnath. This occurrence is said to have been taken place on account of old enmity. After this, it was mentioned that some persons killed one Niroti in his field and at that time when Niroti was killed, the incident was witnessed by Shyam Lal and Ramnath. This occurrence is said to have been taken place on account of old enmity. On this report of Gangaram, a case was registered Under Section s 302, 147, 148, 149 IPC and the S.H.O. P.S., Sapau, went to the site, where he found the dead-bodies of Niroti and Sonkhia in different fields. The post-mortem on the bodies of the deceased was conducted on March 17, 1976, by Dr. Maru. He opined that the cause of death of deceased Sonkhia was multiple-injuries and multiple fractures of the skull. There was no gun-shot wound on Sonkhia but there were a number of gun-shot wounds on Niroti, whose death was caused due to a gun-shot injury in the stomach. The details of the injuries found on the deceased show that both of them were beaten mercilessly. After completing the investigation, the S.H.O. presented a challan against 15 persons, out of whom, three have been acquitted as seen above and the remaining twelve are appellants here. The eye-witnesses of the murder of Niroti are said to be Shyamlal, Ram Nath and one Amar Singh, though only Shyamlal and Ramnath have been shown to be present at the time of occurrence in the First Information Report. No details of that incident were mentioned when the report was lodged at the police station. The manner in which that part of the incident occurred was revealed only when Shyamlal and Ramnath were examined Under Section 161 Cr.PC. The version about the incident which occurred in Niroti's field is that he, along with Ramnath. Shyamlal and Amarsingh were collecting Sarson. Niroti was loading the same in the tractor. Sriya appellant came from the side of Pura and Niroti asked him to smoke a bidi. Ramnath, who was standing on the tractor, threw a bidi to Sriya, which was picked by him, Niroti must have walked down a few steps when Sriya took out a gun from his coat and fired at Niroti, which hit him on his left thigh. Niroti caught hold of his thigh and started running towards the village, when Sriya shouted that the enemy was going away and almost atonce, the other accused came out of the neighbouring field of Bhanta. Niroti caught hold of his thigh and started running towards the village, when Sriya shouted that the enemy was going away and almost atonce, the other accused came out of the neighbouring field of Bhanta. They were shouting 'Maro-Maro'. Chiranji and Mangalsingh had ballam, Shobha and Peta had per se and Rasham had a 12 bore gun and the other had lathies. Rasham and Sriya both fired at Niroti and he fell down. Thereafter, all the others collected round him and all of them gave beating to him. After some time, Niroti died and the accused Sriya said that "he is dead, now hurry up and come to Sonkhia, who will run away if he hears this voice." Then they all went away towards the field of Sonkhia. 3. The motive for this double murder, which is very gruesome is said to be that in the month of January, in that year one Moongi s/o Bhanta had joined Niroti and others in driking wine, when after taking liquor, he was going to to his house, he fell down, on account of the intoxication and died due to cold. Bhanta and his sons and Kachies of village Pura said that Mooni was poisoned and for this they suspected Niroti and Sonkhia and they took revenge upon them. During the investigation after the arrest of the accused, they gave information which led to recovery of lathies, ballams guns etc. which were sent for chemical examination and blood was found on them. The learned Additional Sessions Judge found that the twelve appellants formed on unlawful-assembly and in pursuance of common intention of this unlawful assembly, they caused the death of Niroti and Sonkhia. He further held that the guns of Sriya and Rasham were illegally possessed and used by them. 4. The nature of the injuries of the deceased-persons is numerous and there can be no doubt as to the homicidal death but the same may be looked into for knowing the nature of the attack which was made on the deceased. Niroti had two incised wounds, bone deep on the forehead, one lacerated wound on the right side of the face. There were four entry wounds of bullet, one on the left thigh, another on the left forearm and two in the abdomen. Niroti had two incised wounds, bone deep on the forehead, one lacerated wound on the right side of the face. There were four entry wounds of bullet, one on the left thigh, another on the left forearm and two in the abdomen. There were three exit wounds and the doctor who conducted the post mortem recovered three bullets from the lower half of left arm and one bullet from the muscle of the thigh and one bullet from the muscles of the abdomen. The deceased Sonkhia had six incised wounds on the face and skull and a lacerated wound on the scalp along with contusion. The incised wounds resulted in fracture of the frontal bone, right temporal bone and right parietal bone. This evidence leaves no doubt that a gruesom double murder was committed. 5. The learned Counsel for the appellant has first of all drawn our attention to the legal principles which are to be looked into while appreciating evidence in a criminal case. First of all it is contended that when the murder committed is gruesome, then the rule of prudence is that there should be a high degree of proof about the crime. According to him, fouler the crime, higher the degree of proof required. The next contention is that Gangeram is the solitary witness of the murder of Sonkhia and the testimony of a solitary witness has to be examined with caution. A solitary witness has to be a witness of sterling-worth before acting on his evidence and in this particular case, he has not been believed against three of the accused persons who were acquitted. It is contended that when he has tried to falsely implicate certain persons, then he cannot be believed in respect of the whole incident. The contradictions and omissions which have been pointed out in his statement shall be looked into later. 6. In Prem Singh v. State of Punjab, AIR 1977 SC 673 the sole eye-witnesses of the murder were two brothers of the deceased. The evidence of these two witnesses, with regard to the participation of four other accused was rejected by the Sessions Court as well as High Court as unreliable. It was held that the conviction of the appellant on the testimony of these witnesses was illegal. 7. In Joginder Singh and Ors. The evidence of these two witnesses, with regard to the participation of four other accused was rejected by the Sessions Court as well as High Court as unreliable. It was held that the conviction of the appellant on the testimony of these witnesses was illegal. 7. In Joginder Singh and Ors. v. State, AIR 1968 Raj 63 it has been held that legally there can be no objection in basing the conviction of the accused on the sole testimony of a witness provided he is above reproach and entitled to full credit. However, in this case, it was held that where there was bad blood between the parties from before the occurrence and litigation both civil and criminal was going on between them complainants, failure to promptly lodge a report at the police station, and the omission of the names of the accused from the report and to mention the names of the witnesses and also some other allegations were held to cast serious doubt on the veracity of the sole witness and the convictions were set-aside with these principles in view of the evidence of PW 6, Ganga Ram may be looked into. He has given the story which was narrated by him in the First Information Report. In Court, he was able to name all the fifteen accused who were present. He had the advantage of the medical-report, before appearing as a witness in the Court and he gave the details of the places on which blows were given by the accused by different instruments. In the First Information Report, he had stated that he did not recognise two or three persons but he was able to mention these persons before the Court. He has stated that no one was working in the neighbouring field at that time and the accused persons came quietly without making any noise. It was only when they came very near that they got alarmed. In the First Information Report, it was mentioned that there was enmity with the accused but it his cross-examination, he has stated that there was no enmity between the accused and the deceased. It was only when they came very near that they got alarmed. In the First Information Report, it was mentioned that there was enmity with the accused but it his cross-examination, he has stated that there was no enmity between the accused and the deceased. The incident in which Moongi died due to over drinking was also clarified by Gangaram to Bhanta, who was the father of Moongi by saying that the police had done investigations in order to find out the contents of the liquor and there was no doubt of any poison in it. When he had removed the doubts of Bhanta, then this doubt leading to the attack on Niroti and Sonkhia, by accused persons, does not appear to be proper. In the First Information Report he had mentioned two or three persons, whose names were not known to him but in Court he has deposed that he had recognised those persons at the time of incident itself and had not been able to give their names in that report. He has been cross-examined in detail on this point and has been able to give even the names of the father of those persons. If he could not recall the names of those persons at that time he could have atleast mentioned that they were sons of so and so. In the FIR, he reported that only one person, namely Shobha had a farsa in his hand but now he has attributed a farsa to another person also. He was questioned as to why he did not give out in the FIR Ex. P. 5, that Mangal had a Ballam in his hand and the explanation given by him is that Ballam was used by Mangal Singh as a lathi, therefore, he did not say that he had a ballam in his hand. But when he was cross-examined about Chiranji appellant about whom he had mentioned in the FIR that he had a ballam in his hand and whether he used it as a ballam, then the witness replied that he had used it as a lathi and not as a ballam but he wrote in the First Information Report that Chiranji was having ballam because he had seen that ballam. This witness was confronted with the fact that he was changing the story of beating by ballam because according to the medical evidence, there was no injury by ballam but he stated that he was deposing about what he saw. It is obvious that he is now taking up a stand that the ballam was used as a lathi for the beating of Sonkhia only to find corroboration with the medical evidence. According to Ganga Ram, Sriya appellant fired a gun at Sonkhia but there was no gun-shot injury on this deceased. He has further stated that Sonkhia was belaboured by a number of accused persons by lathies and farsas and when Sriya fired at that time there was a distance of about two yards between them and the other accused had not surrounded him. Ramie is said to be a person along with Gangaram at the field, where Sonkhia was beaten but this Ramie has not been examined as a witness. Thus the only witness of the incident, in which Sonkhiya was killed remains Ganga Ram and it has been seen that he has not been believed in respect of the three accused persons. The witness Gangaram is brother of deceased Sonkhia and it was necessary that this testimony should have been corroborated by independent witness, when available or by circumstances, which could go to show that he was speaking is truth. It is apparent from the statement of Gangaram that he is trying to modulate the blows of accused persons in order to make them comparable with the post mortem report of the deceased Sonkhia. There is no punctured or penetrated wound on Sonkhia and therefore, it became necessary to make out some excuse which is that the ballam was used as a lathi. The most relevant circumstance in this case is that there was no injury on Ganga Ram. If the accused persons were inimical towards Sonkhia and wanted to kill him, then there was no reason not to attack Ganga Ram also when he was present in the field. 8. The evidence of PW 6 Ganga Ram may also be looked into in connection with that part of incident where Niroti is said to be killed by these accused persons. 8. The evidence of PW 6 Ganga Ram may also be looked into in connection with that part of incident where Niroti is said to be killed by these accused persons. According to Ganga Ram, after the incident in which Sonkhia was killed, he went towards the room of Niroti and found Shyamlal and Ram Nath sitting there. When they asked him, then he told that Sonkhia had been killed, thereupon, they informed him that some persons had killed Niroti, Gangaram has stated that he did not tell Shyamlal and Ramnath as to who were the persons, who have killed Sonkhia. But on being asked, he had only stated that people from Pura had killed Sonkhia. At that time, Shyamlal and Ramnath did not give out the names of the persons who had killed Niroti. Thus the only talk which took place between Gangaram and Shyam Lal was that the people of Pura had killed Sonkhia, but who were the killers of Niroti was not disclosed. Without taking the names, it was said by Shyamlal and Ramnath that some persons had killed Niroti. When two murders are committed within a short-time and distance and the eye-witnesses of the two incidents met and talk together, the only thing natural which they would do is to give out the names of the persons who were involved in the incident so that a proper mention of them should be made in the report to be lodged. Not taking any names gives the suggestion that the names of the assailants were not known to the persons. 9. In both the incidents the verson of the alleged eye-witnesses is that the accused walked in quietly as if they were just friends, but then after some talk all of them attacked Niroti. When they went to the field of Sonkia, then too they were quiet not making any noise. On the approach of Sriya in the field of Niroti, no one suspected any thing as according to Ramnath and Shyamlal, Sriyas' gun had been hidden in his coat. Only when his first blow did not hit Niroti on a vital part, then Sriya called out and the other accused immediately came there from the fields of Bhanta and Gokal Singh. They all surrounded Niroti and they were armed with lathies, farsa, ballam and gun. Only when his first blow did not hit Niroti on a vital part, then Sriya called out and the other accused immediately came there from the fields of Bhanta and Gokal Singh. They all surrounded Niroti and they were armed with lathies, farsa, ballam and gun. Rasham fired a gun shot on Niroti, which hit him in the stomach. Again Sriya fired with his gun which hit the deceased on his arm. Therefter, Rashma fired another gun shot in the stomach of Niroti. All the four gun shots, said to be fired at Niroti, concide with post-mortem report, prepared by Dr. Maru. This version of Ramnath and Shyamlal about the firing at Niroti was not given prior to the postmortem report. The accused persons then went away saying that they had to finish Sonkhia also. As Niroti was dead, Shyamlal. Ramnath and Amar Singh, who were also there, went away from there. Then at the room of Niroti, Ganga Ram also came weeping and told them what was happened to Sonkhia. According to PW 1 Ramnath, he had given the names of all the fifteen accused persons to Gangaram before he went to lodge the report at the police station. This witness Ramnath even gives out the statement that Bhanta had told him about the enmity with the deceased due to the poisoning of his son Moongi. Even the names of Amar Singh and Pati Ram, who were said to be present at the time of attack on Niroti is not mentioned in the First Information Report and the reason said to be is that Ramnath and Shyamlal had not informed Gangaram about their presence. If the names of the eye-witnesses cannot be disclosed at the earliest, then it only shows that the persons concerned had no idea about who were persons at that time. PW 1 Ramnath is said to have caught hold of accused Sriya after he had fired the first shot but there appears to be no signs of struggle on his body. There was no reason why some sort of attack was not made on Ramnath and Shyamlal also if they were present at that place. PW 1 Ramnath is said to have caught hold of accused Sriya after he had fired the first shot but there appears to be no signs of struggle on his body. There was no reason why some sort of attack was not made on Ramnath and Shyamlal also if they were present at that place. If on being caught, witness did not shout so that the persons in other fields could hear and come out from their fields, atleast, some would have gone to Sonkhia's field and they would have been ready in case there was some danger to him. In normal circumstances, Ramnath and Shyamlal would have gone towards the field of Sonkhia to find out what the accused persons did after they had declared their intention to kill Sonkhia but inspite of doing so, they quietly went to the room of Niroti and when Gangaram came there, they did not even volunteer what happened to Niroti but stated only when Gangaram asked and even the names of accused persons were not disclosed. Now, Ramnath PW 1 says that he had even given the details of the weapons of each accused before the report was lodged but the report, as we have seen above, does not say so. In fact there is no narration as to how Niroti was killed, when PW3 Shyamlal was examined, his statemant was full of lacunas. He has stated that he told the names of all the accused persons to Gangaram and Gangaram also gave the names of assailants of Sonkhia. If both were clear about the names of fifteen persons who had attacked Niroti and Sonkhia, why the three persons were not named in the FIR., has not been explained. The alleged eye-witnesses of the incident, in which Niroti was killed did not go to the Police Station and details of their version have not been mentioned in the FIR, which suggest that the murder of Niroti was not witnessed by these persons. Pati Ram who has been made a witness in the Court was not named by Ramnath and Shyamlal in their statement Under Section 161 Cr. P.C. Even the story that the accused persons had declared in the field of Niroti, their intention to attack Sonkhia, was not mentioned by in his Police Station. 10. Pati Ram who has been made a witness in the Court was not named by Ramnath and Shyamlal in their statement Under Section 161 Cr. P.C. Even the story that the accused persons had declared in the field of Niroti, their intention to attack Sonkhia, was not mentioned by in his Police Station. 10. PW 7 Pati Ram is brother of deceased Niroti, who has become an eye-witness even though he was not shown to be present at the time of incident in the First Information Report. He too, like the other witnesses has given the details of weapons, and place of injuries according to the medical evidence. However, he also says that relations between Niroti and Sriya were good and there was no enmity between them. He also says that the accused persons came at an interval of 10 to 15 minutes, which does not find support from the statements of Ramnath and Shyamlal. 11. It is apparent that all the witnesses have been changing the manner in which the occurrence took place and according to the learned Counsel for the appellant the reason for this is that no one saw the incident but it was the impression in the village that dacoits had come and attacked these two persons in the field and it is for this reason that when the police arrived at the site, they took help of the RAC Battalion, as has been admitted by PW 4 Kabhuveersingh, S.H.O. Police Station Sapau. After the medical report, the eye-witnesses who were not named in the FIR have been produced. The cartridges which were extracted from body of Niroti were sealed and handed-over to the S.H.O. by Dr. Maru but the same were not got examined by the Forensic Experts. The nature of the bullets would have disclosed what type of gun was used and whether there was one gun or two guns. This evidence is missing in this case. 12. The learned Counsel for the appellant has argued that when the oral evidence against the accused persons is not very strong then the motive becomes very important but in this case the motive as given out by the prosecution does not appear to be correct. Even the accused persons have not been asked to explain about the evidence of motive produced in the case. Even the accused persons have not been asked to explain about the evidence of motive produced in the case. A question about this evidence finds place only in the statements of accused Rasham, and Sriya recorded Under Section 313 Cr.PC and even these statements have not been signed by the accused persons. It is suggested that the question about the reason for enmity and motive for murder has been added in the statements of these accused persons at a later date. All the statements have been typed in three sets and the question about this motive and enmity does not appear in all the statements and, therefore, it is contended that these should not be relied upon. If there was any enmity between the appellants and deceased Niroti and Sonkhia, then these persons would not have gone to the field in a friendly manner and started having conversation with each other and smoke bidi together. Another circumstance pointed out against the prosecution is that the First Information Report lodged on March 16,1976, reached the Court of the Magistrate on March 22,1976, after a lapse of six days. 13. Relying on Ishwar Singh v. The State of Uttar Pradesh (3), it is argued that it provides a legitimate basis for suspecting that the First Information Report was recorded much later than the stated date and hour. 14. We have seen the oral evidence and we find that it does not inspire confidence. The witnesses did not come out with the full story at an early date and gave out the details in order to match their version with the medical evidence. The witnesses who were not named, have subsequently become witnesses of the incident on account of relationship and these factors cannot be attributed to the normal-manner in which the version is given as seen. The failure of Ballastic Expert to give a report about the bullets extracted from the body also warrants an adverse inference against the prosecution. 15. As seen above, the single witness about the incident in which Sonkhia was killed, does not appear to be of sterling-worth as he has been disbelieved in respect of the three accused persons and besides this there are contradictions and further developments in his statement. 15. As seen above, the single witness about the incident in which Sonkhia was killed, does not appear to be of sterling-worth as he has been disbelieved in respect of the three accused persons and besides this there are contradictions and further developments in his statement. All the other witnesses of the murder of Niroti have also made improvements in their statements so as to make them match with the medical evidence and as such they do not inspire confidence. For all these reasons, we hold that on the basis of the testimony of these witnesses, the offence against the appellants cannot be held to be proved. 16. Learned Counsel for the appellant has raised a plea about the misjoinder of charges on the ground that the incident in which Niroti died and the incident in which Sonkhia died were two separate incidents and the joining of the same has caused prejudice to the appellants in their defence. However, as we have not believed the prosecution evidence, we do not wish to make any comments on this plea. 17. In the result, the appeal is accepted and all the appellants are acquitted of various offences for which they were convicted. Appellant Rasham is in jail, he shall be released forthwith, if not wanted in any other case. Other appellants are on bail, their bail bonds shall stand discharged.Appeal accepted. *******