Judgment A.S. Srivastava, J. 1. BHUPAL Singh, Puran Singh, Mahipal Singh, Dhyan Singh and Bahadur Singh appellants have filed this appeal against the judgment and order dated 31-8-1977 of the II Additional Sessions Judge, Nainital, convicting and sentencing BHUPAL Singh to imprisonment for life under section 302 IPC and Puran Singh, Mahipal Singh, Dhyan Singh and Bahadur Singn to four years' R. I. and a fine of Rs. 500/- under Section 326/34 IPC each (in default of payment of fine to rigorous imprisonment for further period of one year). 2. BHUPAL Singh, Puran Singh and Mahipal Singh appellants are real brothers. Dhyan Singh is their nephew and Bahadur Singh is their servant. All these appellants, except Bahadur Singh, are residents of village Lachampur, P. S. Haldwani, district Nainital. Bahadur Singh is a resident of village Himmatpur, P. S. Haldwani, Prem Ballabh PW 10 is also a resident of village Lachampur. The deceased Trilochan was son of Prem Ballabh who was murdered on 6-8-1976 at about 4-5 p. m. in the Jungle of Himmatpur Nakail (Kalukhera Plantation) which is about 9kms away from P. S. Haldwani. He was done to death by means of a Kulhari by beheading him. The head of the deceased was not found at the place of occurrence. Prem Ballabh was not in his village when his murder took place. On 3-8-1976 he had gone to village Harakhan from where he returned on 8-8-1976. His wife then told him that Trilochan deceased who had gone to cut wood in the jungle on 6-8-1976 had not returned till then. She also told him that Diwani Ram and Sohan Lal of that village had also accompanied his son to the jungle for cutting wood. She also told him that in the evening when she enquired from those three children about Trilochan deceased they told her that they returned from Sukhi Nadi and Trilochan had gone away in the jungle for cutting wood. She further told him that her nephew Dharmanand had seen the appellants also going to the jungle in the same direction in which the deceased had gone. On learning these facts, Prem Ballabh came to Haldwani for lodging a report where he met Bishambhar Datt son of Raghubir Datt of village Pinru. She further told him that her nephew Dharmanand had seen the appellants also going to the jungle in the same direction in which the deceased had gone. On learning these facts, Prem Ballabh came to Haldwani for lodging a report where he met Bishambhar Datt son of Raghubir Datt of village Pinru. When Prem Ballabh told him about the disappearance of his son Bishambar Datt said that there was no use for making a search for Trilochan because he had seen him being murdered by the appellants in the jungle of Himmatpur Nakail while he was returning on foot on the evening of 6-8-1976 from Chauregalia to Haldwani. At about 4 or 5 p. m. on that evening when he was near that village he heard the alarm of the deceased. On that alarm when he went there he saw the appellants beheading the deceased. On his protests the appellants threatened to murder him also if he raised any voice. On learning this fact, Prem Ballabh sent his son-in-law Harish Chandra to go in the jungle with some men and search for the dead body. Thereafter he came to P.S. Haldwani where he lodged the report containing the entire facts mentioned above. S.I. Prem Singh Pundtr PW 11 started investigation of this case on the basis of the report. On the same day i.e. 8-8-1976 he went to the place of occurrence where he made an inspection of the site and despatched the dead body for post-mortem examination after conducting inquest proceedings and performing other necessary formalities. He also made some recoveries from the place of occurrence including blood-stained earth. 3. THE post-mortem examination on the dead body was performed on 9-8-1976 at 9.30 a. m. by Dr. N. D. Pant PW 4 at the Civil Hospital Haldwani who found the following ante-mortem injuries on it :- "1. Large wound at the junction of trunk and neck (with head and neck missing) measuring from front to backwards 12 cm x side to side 10 cm. This wound included many incised wounds. Margins were irregular at places on account of gnawing by maggots and animals. THE floor showed cut muscles, both carotid vessels were cut and thyroid cartilage was also cut and the direction was from left to right. THE 7th vertebra was cut and was hanging loosely in the wound. 2. This wound included many incised wounds. Margins were irregular at places on account of gnawing by maggots and animals. THE floor showed cut muscles, both carotid vessels were cut and thyroid cartilage was also cut and the direction was from left to right. THE 7th vertebra was cut and was hanging loosely in the wound. 2. Incised wound 4 cm x 1.5 cm x muscle deep on the back side of left shoulder over joint line. THE floor showed swelling and decomposition. Direction of bone was from inside to outwards in a horizontal plane. THE edges were partly gnawed out by maggots. 3. Abraded area 20 cm x 5 cm on the back and inner aspect of left forearm and elbow. 4. Abraded area 6 cm x 4 cm on the back of left arm 5 cm above from elbow joint. " According to the doctor the beheading of the deceased was likely with a Kulnari. 4. THE motive for the crime as suggested by the prosecution is that Prcm Ballabh who was a resident of a different village had purchased 40 bighas of land in village Lachampur in the year 1959 from Kishan Singh, the brother of Chatur Singh and the father of Bhupal Singh, Puran Singh and Mahipal Singh appellants. Chatur Singh did not like it. He therefore got a suit for ejectment of Prem Ballabh filed by the wife of Kishan Singh. Prem Balkan won that case. Thereafter Chatur Singh had been declaring that no doubt Prem Ballabh had won the case, he will ruin him and will not permit him to live in the village. The prosection has examined 13 witnesses to prove its case. They did not include Bishambhar Datt from whom Prem Ballabh had learnt about the occurrence and who, according to the FIR was an eye witness. However, out of the aforesaid 13 witnesses, Diwani Ram PW 1 and Sohan Lal PW 2 have been examined as witnesses of fact. 5. THE appellants have denied the prosecution case. They have stated to have been falsely implicated in the case on account of enmity. One Rajendra Singh Bisht DW 1 has been examined by the appellants in their defence. 6. AFTER considering the above evidence, the learned Sessions Judge has concluded that the case of the prosecution is proved against the appellants beyond all reasonable doubt. They have stated to have been falsely implicated in the case on account of enmity. One Rajendra Singh Bisht DW 1 has been examined by the appellants in their defence. 6. AFTER considering the above evidence, the learned Sessions Judge has concluded that the case of the prosecution is proved against the appellants beyond all reasonable doubt. Since Bhupal Signh appellant had hit the deceased with a Kulhari, he has bean convicted and sentenced under section 302 IPC whereas others have been Convicted and sentenced duly under section 326/34 IPC as already stated above. The case of the prosecution, as stated above, rests on the testimony of Diwani Ram PW 1 and Sohan Lal PW 2 who have been examined as eyewitnesses of the occurrence. The learned Sessions Judge has believed the prosecution story that the occurrence had taken place in the presence of these two witnesses. But there are circumstances which make their presence at the time of the occurrence highly suspicious. 7. PREM Ballabh PW 10, the father of the deceased, has stated that or 8-8-1976 when he had a talk with Diwani Ram and Sohan Lal they did no tell him that the occurrence had taken place in their presence. These witnesses had told him that they had gone only upto river Sukhi. This statement of PREM Ballabh is corroborated by the FIR which he had lodged at the police station or the same day. Not only this, the allegations in the FIR that these witnesses had made similar statements before the mother of the deceased on 6-8-1976 also lend corroboration to the above statement of PREM Ballabh. If this statement is believed, these two witnesses had not seen the occurrence themselves. 8. PREM Ballabh PW 1 has further stated that he had, before lodging the report at the police station, learnt from Bishambhar Datt about his son beng murdered by the appellants. He has stated that Bishambhar Datt had told him to be an eye-witness of the occurrence. In his statement to PREM Ballabh, Bishambhar Datt had not named the two witnesses examined in this case viz. He has stated that Bishambhar Datt had told him to be an eye-witness of the occurrence. In his statement to PREM Ballabh, Bishambhar Datt had not named the two witnesses examined in this case viz. Diwani Ram and Sohan Lal as the persons who were also present at the place of occurrence According to the statement made by Bishambar Datt to PREM Ballabh which was the basis of his report at the police station when Bishambhar Datt had reached the scene of occurrence no injury was inflicated on Trilochan. The fatal injury on the neck of Trilochan was inflicted in his presence. If this was a fact, Trilochan was not injured in the presence of the two eye-witnesses of this case. The statement of the two eye-witnesses that they were present when Bhupal Singh gave blow on the neck of the deceased with an axe cannot, therefore, be accepted without a pinch of salt. If that blow was given in their presence, Bishambhar Datt was not present And, if the blow was given in the presence of Bishambhar Datt, these two witnesses were not present. The fact that PREM Ballabh had lodged the report against the appellants on the basis of information received by him from Bishambhar Datt leads to an inference that Bishambhar Datt was really present at the scene of occurrence when it had taken place. His statement to PREM Ballabh excludes the actual presence of these two eye-witnesses of the prosecution referred to above at the time when the deceased had received Kulhari blows on his neck. It transpires from the evidence on the record that Bishambhar Datt has not been examined as a witness in this case. The explanation for his non- examination is that he was not available for being produced at the trial. The Investigating Officer had felt the necessity of interrogating this witness on 9- 8-1976 also even though he was interrogated about this fact by him on 8-8-1976. As a result of these two interrogations, the witness is said to have disappeared. It is on the interrogation of Bishambhar Datt on 9-8-1976 that the two witnesses Diwani Ram and Sohan Lal emerged as eye-witnesses of this occurrence in their statements purported to have been recorded by the Investigating Officer on 9-8-1976. The Investigating Officer was not satisfied by recording their statements on 9-8-1976 under Section 161, Cr. P.C. only. It is on the interrogation of Bishambhar Datt on 9-8-1976 that the two witnesses Diwani Ram and Sohan Lal emerged as eye-witnesses of this occurrence in their statements purported to have been recorded by the Investigating Officer on 9-8-1976. The Investigating Officer was not satisfied by recording their statements on 9-8-1976 under Section 161, Cr. P.C. only. Therefore he had taken them to Munsif Magistrate, Haldwani on the next day i. e. on 10- 8-1976 for recording their statements under Section 164 Cr. P.C.. In his cross- examination Diwani Ram has admitted that when the Magistrate was recording his statements, the Daroga as well as a Sipahi were standing only 2 or 3 paces behind him. His statement was recorded by the Magistrate on the basis of his replies given to the questions put to him by the Daroga. In this connection it is further important to note that both these witnesses have stated that after the occurrence they have not told about it to any one before they were contacted by the Investigating Officer himself. In other words, they made this statement for the first time on 9-8-1976 to the Investigating Officer and before that date they bad not stated to anyone that they were present when Trilochan was done to death by the appellants. Tn these circumstances, it is highly unsafe to place reliance on their statements that they were really present when the occurrence had taken place. Even if it may be assumed that the appellants are influential persons of the village wielding terror, it cannot guarantee about the truthfulness of the aforesaid witnesses about their alleged presence at the time of the occurrence when considered alongwith the circumstances narrated above. The learned Sessions Judge seems to have placed reliance on the testimony of these two witnesses about their alleged presence at the scene of occurrence merely because the Counsel for the appellants made a suggestion during their cross- examination that was it not possible that in a quarrel between them and the deceased during playing of cards, one of them had given him the fatal axe blow on his neck. The witnesses gave a negative reply to such a question put to them. The witnesses gave a negative reply to such a question put to them. From this suggestion made by the counsel for the appellants during cross-examination of these witnesses, the learned Sessions Judge has inferred that such a quession was possible only when the appellants were themselves present at the occurrence and they intended to put the liability of the murder of the deceased on the two eye-witnesses. In this connection it may also be pointed out that the above suggestion was not made by any of the appellants in their statements recorded under section 313 Cr. P.C.. The suggestion was put to the said eye-witnesses during their cross-examination by their counsel. Obviously the counsel, while putting the said question, did not purport to confess the guilt of the appellants nor he could have done so while cross-examining a witness. 9. THE purpose for which a counsel cross-examines a witness in a criminal trial is not only to test his veracity but also to elicit facts which help his defence. His further aim is to demolish the very story of the prosecution, if he can successfully do so. A question obviously put to a witness with the sole object of the demolition of the prosecution story cannot amount to a statement by an accused suggesting the inference that he committed the offence merely because the question put to the witness was in the nature of a roving question. Therefore a finding of guilt based on such a question put to any witness of the prosecution by a counsel of an accused cannot be held based on evidence. Such a question is not an evidence in the case It does not even constitute a confession of guilt by the accused because it does not amount to a direct acknowledgement of the guilt by the accused on whose behalf the question is put to the witness. 10. NOW, coming to the facts of this case, we find that there is no reliable evidence on the record to support the finding of guilt recorded against any of the appellants. 10. NOW, coming to the facts of this case, we find that there is no reliable evidence on the record to support the finding of guilt recorded against any of the appellants. In that event, no finding of guilt can be based against the appellants on the basis of a question put by the counsel for the appellants to the two eye-witnesses during cross-examination suggesting that was it not possible that in a quarrel between them and the deceased during playing of cards, one of them had given a fatal axe blow to the deceased. Therefore, the order of conviction and sentence of the appellants cannot be sustained. The appeal accordingly succeds and is allowed. The order of conviction and sentence of the appellants is set aside. The appellants are on bail. They need not surender. Their bail bonds are hereby cancelled. Appeal allowed.