JUDGMENT 1. - This appeal is preferred against the judgment of Sessions Judge, Bharatpur whereby he convicted the appellants for the offence u/s 302/34 IPC and sentenced each of them to life imprisonment and a fine of Rs. 500/-, in default of payments of fine to further undergo 6 months 5 rigorous imprisonment. The appellant were also convicted of the offence u/s 307/34 IPC and each of them sentenced to 4 years 5 rigorous imprisonment and a fine of Rs. 200/-, in default of payment of fine to further undergo 3 months 5 rigorous imprisonment. They have also been convicted u/s 342 IPC and each of them sentenced to 3 months' rigorous imprisonment. 2. Suresh Chandra lodged a written report on 29-9-82 at Police Station, Sewar alleging that cases were pending between the complainant and accused Ram Singh and others and on account of this litigation Ram Singh and others were on inimical term with them. Every time they went to falsely implicate their family members in litigation. He has further alleged that on the date of incident he had gone to Bharatpur. His father Mohan Lal, his uncle Mewa Ram were going to their field, in the evening at 5 P.M. Their way to field was in front of the house of Ram Singh accused. As Mohan Lal and Mewa Ram arrived infront of the house of Ram Singh and were going towards their field Ram Singh and his son Gordhan uttered that `today there is an opportunity and they may be killed'. While uttering such words the accused persons surrounded Mohan Lal and Mewa Ram and dragged them to their house. There, Mohan Lal and Mewa Ram were beaten by lathi and axe. His brother-in-law Saitan Singh who was following Mohan Lal and Mewa Ram seeing this cried for help. At this his mother, his sister Prem and other persons of the village came to rescue Mohan Lal and Mewa Ram. The accused persons also threatened them to be killed. In presence of these persons Ram Singh and Gordhan inflicted lathi and axe blows to Mohan Lal, Mewa Ram mercilessly and thinking that they have died, closed them in a `Kotha'. Thereafter he went to the house of Ram Singh and saw that Mohan Lal and Mewa Ram were lying in an unconscious state. He brought both of them in a Tonga to hospital. Thereafter he went to the house of Ram Singh and saw that Mohan Lal and Mewa Ram were lying in an unconscious state. He brought both of them in a Tonga to hospital. The condition of his father was very serious. On this report the police registered a case u/s 307, 342 and 323/34 IPC and started investigation. The I.O. inspected site on 13-9-82 and prepared the `site Plan' Ex. P 2. He also collected blood stained earth and plain earth from the site vide memo Ex. P 11, he also seized clothes of Mewa Ram and Mohan Lal which were strained with blood. On 6-10-82 the Investigation Officer arrested Ram Singh and Gordhan and Kesha was arrested on 27-10-82. On the information and instance of the accused persons lathi and axe were recovered. 3. Mohan Lal and Mewa Ram were admitted in the hospital and their injuries were examined by Dr. Bhopal Singh Choudhary. On 4-10-82 Mewa Ram expired in the hospital and the case was converted u/s 302 IPC. After usual investigation the police submitted challan against 3 accused persons. According to them Saheb Singh has absconded and still he is at large. 4. The prosecution has examined 8 witnesses to establish its case. The accused persons have denied the allegations made against them. They have also examined one witness in their defence. The learned Sessions Judge, Bharatpur acquitted the accused Kesha but found that the case against Ram Singh and Gordhan has been established and he convicted and sentenced them as mentioned above. 5. It has not been disputed by the Learned Counsel for the appellants that Mewa Ram died in the hospital of injuries received by him. The prosecution witnesses have stated that Mewa Ram was given beating by Ram Singh and Gordhan and subsequently on 4-10-82 he died in the hospital. Dr. Bhopal Singh Choudhary PW 6, examined the injuries of Mewa Ram on 29-9-82 at 2.45 p.m. and he found 7 (seven) injuries on his body. According to him the injuries number 1 to 6 were grievous. The injuries Number 1 to 5 were caused by sharp weapon and injury number 6 and 7 were caused by blunt object. The duration of injuries was within 10 hours. The Dr. According to him the injuries number 1 to 6 were grievous. The injuries Number 1 to 5 were caused by sharp weapon and injury number 6 and 7 were caused by blunt object. The duration of injuries was within 10 hours. The Dr. has conducted the postmortem on the body of Mewa Ram and he has stated that on 4-10-82 Mewa Ram expired at 1.30 A.M. At 10.30 he conducted the postmortem on the body of Mewa Ram and on internal examination he found 4 injuries which have been mentioned in the postmortem report Ex. P 6. In his opinion Mewa Ram died of shock and intracranial haemorrhage due to head injury. Thus, from the Doctor's report and statement it is clear that Mewa Ram died on account of injuries. So this is a clear of homicidal and injuries were homicidal in nature. 6. The learned counsel for the appellant has argued that the entire case depends on the statement of eye-witnesses Mangalia w/o Mewa Ram PW 1, Ram Kali w/o Mohan Lal PW 2, Prem w/o Rohitan PW 3, who is daughter of injured Mohan Lal and Munni w/o Bansi Lal PW 4 who is niece of Mewa Ram and Mohan Lal. All these eye-witnesses are close relatives of Mewa Ram and their statement should be scrutinised carefully. The prosecution has not examined independent witness who had witnesses this incident Saitan Singh, Rohitan and other villagers who had witnessed this incident have not been examined by the prosecution. Their non-examination gives an adverse inference against them. It has also argued that the eye-witnesses who are close relatives are most unreliable and untrustworthy. Munny PW 4 and Mangalia PW 1 have been examined as eye-witnesses but their names haven not been mentioned in the report Ex. PI. This shows that these two witnesses have been made out and examined as eye witnesses. Their statements should not be believed at all. 7. It was also argued by the learned counsel for the appellants that the weapons were recovered at the instance of the appellants as alleged by the prosecution but the learned Sessions Judge has discarded the recovery of the weapons. He has given a finding that the prosecution has failed to connect these weapons i.e. lathi and axe with the crime and ultimately he discarded the evidence regarding recovery of these weapons. He has given a finding that the prosecution has failed to connect these weapons i.e. lathi and axe with the crime and ultimately he discarded the evidence regarding recovery of these weapons. He has also argued that there is nothing on record to prove that both the parties were on inimical term. 8. The learned public prosecutor has supported the judgment of learned Sessions Judge and with that prosecution has established its case beyond reasonable doubt. There is no reason to disbelieve the eye witnesses. They are, no doubt, close relatives but their statements are of value and the learned Sessions Judge has rightly based his judgment after believing their statements. We have perused the entire prosecution evidence in detail. The report Ex. P 1 was lodged by Suresh Chandra s/o injured Mohan Lai and according to this report Suresh had gone to Bharatpur and when he came back from Bharatpur he lodged this report. From the record it is clear that Suresh is not an eye witness. When he returned from Bharatpur he was informed by other witnesses about this incident. He then went to the house of Ram Singh. In his statement he has stated that at 4 P.M. he returned from Bharatpur and he was told by Magalia, Ram Kali, Prern, Munny and Rohitan that his father and uncle have been beaten by Ram Singh and others and they were lying in their house. He, Nanwa and Rohitan alongwith other lady eyewitnesses went to the house of Ram Singh and found both Mohan Lai and Mewa Ram lying in an unconscious state in the house. It means this statement reflects that Suresh was not an eye witness and he was informed about this incident by other witnesses. But in the report Ex. P 1 he has stated in detail that what had happened with Mohan Lai and Mewa Ram. According to this report Ex. P 1, when Ram Singh and others were beating Mohan Lal and Mewa Ram, his brother-in-law Saitan Singh who was coming behind Mohan Lal and Mewa Ram saw the accused persons beating them and he raised cry to help them. At this Ram Kali PW 2 mother of Suresh and Prem PW 3 sister of Suresh came at the spot and tried to rescue them. It means that Ram Kali and Prem were also not the eye witnesses. At this Ram Kali PW 2 mother of Suresh and Prem PW 3 sister of Suresh came at the spot and tried to rescue them. It means that Ram Kali and Prem were also not the eye witnesses. Only eye witness was Saitan Singh who saw actual beating and he cried to save Mohan Lal and Mewa Ram. Hearing his cry Ram Kali and Prem arrived there. So, it is clear that Ram Kali and Prem were also not eye witnesses. It is not mentioned in the report that Smt. Mangalia widow/o Mewa Ram PW 1 and Munny PW 4 also arrived at the spot on hearing cry of Saitan Singh. These witnesses Smt. Mangalia and Munny have been examined by the prosecution and they have deposed as if they were eye witnesses. Had they been eye-witnesses to this incident, their name should have been mentioned in the report Ex. P. 1. It can not be believed that Suresh did not know the name of Smt. Mangalia and Munny both are his close relatives and when he returned from Bharatpur he was told about this incident and he must have been also told that Smt. Mangalia and Munny also witnessed this incident. The omission of mentioning their names in the report Ex. P 1 shows that both these witnesses have been made out later on and, therefore, their statement are not worth reliance. Another important aspect is that according to Ex. P 1 report, Saitan Singh was the only eye witness to this incident. But the police has not examined Saitan Singh. Why Saitan Singh has not been examined is best known to the prosecution but his non-examination gives an adverse inference against the prosecution case. Saitan Singh was a very important witness and apart from him other villagers also arrived at the spot but none of them has been examined. Suresh PW 5 has stated that Rohitan also came with Smt. Mangalia and others and informed him about this incident. Rohitan also has not been examined by the prosecution. The reason for not examining Rohitan is best known to the prosecution. Therefore, not examining independent and important eye-witnesses indicated that the whole case made out and this creates doubt in the prosecution story, as alleged by them. 9. Smt. Mangalia PW 1 has stated that at 5 P.M. Mewa Ram and Mohan Lal and gone to the field. The reason for not examining Rohitan is best known to the prosecution. Therefore, not examining independent and important eye-witnesses indicated that the whole case made out and this creates doubt in the prosecution story, as alleged by them. 9. Smt. Mangalia PW 1 has stated that at 5 P.M. Mewa Ram and Mohan Lal and gone to the field. In the way the house of Ram Singh lies she heard some cry and later on she, Prem, Ram Kali and Munny went there running Rohitan was also going ahead. The beating was going on in front of the house of Ram Singh. Mewa Ram was dragged by Kesha and Saheb Singh and was being taken towards the house of Ram Singh. Mewa Ram was not willing to go and then Ram Singh and Gordhan armed with axe came there and inflicted the blows on the head of Mewa Ram. Mewa Ram fell down on the spot. Thereafter Saheb Singh also inflicted lathi blow on the head of Mewa Ram so also Kesha. When Mohan Lal came to rescue him he was also caught by Kesha and Sahib Singh, Gordhan and Ram Singh inflicted lathi blows on his head. She and Munny also went to rescue them then Kesha inflicted lathi blow on the hand of Munny. After beating Mewa Ram and Mohan Lal the accused persons locked them in their house. In the cross-examination she has stated that they were at their house when they-heard this cry of beating. She has further stated that when they heard hue and cry they came running at the spot so she has given tow versions one-she has stated that all the eye witnesses were at their house when they heard hue and cry and in the second breath she has stated that they were at the spot when this incident tooks place. She wanted to prove this as eye witness and that is why she has given this statement. She has also stated that Rohitan, Prem and Ram Kali were going without any work. Mewa Ram and Mohan Lal were alone going to their field. Smt. Mangalia has not stated that she was also going to the field with her husband. Where was the necessity for Smt. Mangalia and other eye witnesses to follow Mews Ram Mohan Lal. She has also stated that Rohitan, Prem and Ram Kali were going without any work. Mewa Ram and Mohan Lal were alone going to their field. Smt. Mangalia has not stated that she was also going to the field with her husband. Where was the necessity for Smt. Mangalia and other eye witnesses to follow Mews Ram Mohan Lal. So in order to create Smt. Mangalia, Ram Kali, Prem and Munny as eye witnesses they have been asked to depose like them. She also has stated that when they left house and come to the spot Nanwa and Suresh were at the house. This is an unbelievable statement. Had Suesh and Nanwa been in the house they would also have arrived at the spot on hearing hue and cry. According to witnesses after beating they came to the house and informed Suresh about his incident but Smt. Mangalia tried to emphsize that Suresh was present at the house when the incident took place which is a false fact. Therefore, Mangalia is an unreliable witness. Another point is that Smt. Mangalia has stated that after beating Mohan Lal and Mewa Ram remained lying in the way thereafter they were taken inside the house. There was blood in the way also. Inside the house of Ram Singh there was blood. The Investigating Officer only seized blood from inside the house of Ram Singh. Site Plan Ex. P 2, was prepared by I.O. and it has not been mentioned in this site plan that in the way "Dagra" there was blood. According to Smt. Mangalia blood stain earth was also in the "Dagra". The Investigating Officer does not say so. Had the accused gave beating to Mohan Lal and Mewa Ram in the "Dagra" and both fell down in the Dagra, there should have been blood at the spot in "Dagra". But there was no blood found in the "Dagra". There fore, the statement of eye witnesses that they saw actual beating in unbelievable. Ram Kali PW 2 also gave similar statement as Smt. Mangalia PW 1 gave. On hearing hue and cry coming from the house of Ram Singh they went to the spot and saw that Ram Singh and Gordhan came with axe and inflicted axe blows to Mewa Ram. The entire statement is as if she was also with Mewa Ram and Mohan Lal when this beating took place. On hearing hue and cry coming from the house of Ram Singh they went to the spot and saw that Ram Singh and Gordhan came with axe and inflicted axe blows to Mewa Ram. The entire statement is as if she was also with Mewa Ram and Mohan Lal when this beating took place. From the map Ex. P D 5 we found that the house of Mewa Ram is at a distance from the house of Ram Singh where the incident arise to have been taken. It is also in the evidence that from the house of Mewa Ram the house of Ram Singh accused is also not visible. It is also in the evidence that on the West of the house of Mewa Ram there is 'Pokhar' and there is no way by the side of 'Pokhar'. On seeing map Ex. D it is clear that from the house of Mewa Ram the house of Ram Singh accused is situated at a great distance. After seeing the map we are of the opinion that it is difficult to hear the hue and cry form the house of Ram Singh at the house of Mewa Ram. The eye witnesses who were at the house could not hear hue and cry and their presence at the spot is not possible. It is clear that these eye witnesses who are closed relatives have been made out as eye witnesses and actually they did not witness the incident. Smt. Mangalia being widow/o Mewa Ram, Smt. Ram Kali being w/o injured Mohan Lal and Prem PW 3 being daughter of Mohan Lal have stated as if they are eye-witnesses. As we have discussed above all these witnesses are unreliable and untrustworthy witnesses and it is unsafe to base conviction on the statement of such witnesses. Similarly Munny PW 4 has also unreliable and untrustworthy witness. These eye witnesses could not be turned as witnesses of sterling worth. The learned Sessions Judge has failed to appreciate the prosecution evidence in the right and proper way. 10. Suresh lodged the report Ex. P 1 the basis of the information given to him by his family members. In this report he has alleged that Saitan Singh raised hue and cry and hearing this his mother and sister Prem arrived at the spot. 10. Suresh lodged the report Ex. P 1 the basis of the information given to him by his family members. In this report he has alleged that Saitan Singh raised hue and cry and hearing this his mother and sister Prem arrived at the spot. It means that when the accused persons had given beating to Mewa Ram and Mohan Lal, Shri Saitan Singh raised hue and cry and then Ram Kali and Prem arrived at the spot. They came from their house which is at a distance. They could not come immediately to see the actual beating, but to prove this as eye witness they have stated in the court statement that they were going just behind Mewa Ram and Mohan Lal and when they reached near the house of Ram Singh they were beaten by the accused persons and they actually witnessed this incident. It can not be said that Suresh has committed error in mentioning in the report Ex. P 1 that his mother and sister arrived after hearing hue and cry. He is the son of injured Mohan Lal and nephew of deceased Mewa Ram. If Ram Kali and Prem were at the spot and witnessed everything there no mistake would have been committed by Suresh not mentioning in the report Ex. P 4 that his mother and sister had witnessed it. 11. The Investigating Officer recovered lathi and axe on the information and at the instance of the accused persons. The axe was having blood. They were sent to medical examiner who gave his report. The prosecution has also not examined the person who took the sealed packets to forensic science laboratory for examination. The learned Sessions Judge did not believe the prosecution contention and he opined that on the report of Forensic Science Laboratory the accused persons could not beheld guilty. This according to learned Sessions Judge the prosecution has failed to connect the weapons with the crime. We have also perused the evidence on this point and we agree that the finding of the learned Sessions Judge and also held that the prosecution has failed to connect the recovered weapons with the crime. 12. As we have discussed above the statements of eye witnesses Smt. Mangalia, Smt. Ram Kali, Smt. Prem and Smt. Munny are unreliable and untrustworthy. The prosecution has not examined the independent witnesses. 12. As we have discussed above the statements of eye witnesses Smt. Mangalia, Smt. Ram Kali, Smt. Prem and Smt. Munny are unreliable and untrustworthy. The prosecution has not examined the independent witnesses. The prosecution has also failed to examine Saitan Singh and Rohitan who are important witnesses. Therefore, the prosecution has failed to prove its case beyond reasonable doubt. We do not agree with the finding arrived at by the learned Sessions Judge. We are unable to maintain the conviction and sentence awarded to the appellants by the learned Sessions Judge. 13. As a result the appeal is accepted. Both the appellants are not found guilty of the offence u/s 302/34, 307/34 and 342 IPC. They are, therefore, acquitted. Both the appellants are in jail. They shall be released forthwith if not required in any other case.Appeal accepted. *******