JUDGMENT 1. - D.B. Cr. (Jail) Appeal No. 162/86 has been preferred by the accused, Narain alias Attarsingh through the jail authorities challenging the conviction and the sentence awarded to him by the trial court vide its judgment dated 21st Feb., 86; and DB Cr. Reference No. 2/86 has been made by the Sessions Judge, Bharatpur u/s 366 (1), Cr. P.C., for confirmation of the sentence of death awarded by him to accused Narain alias Attarsingh, by his judgment aforesaid. 2. As both the appeal and the criminal reference arise out of the same judgment, they are being disposed of by this common judgment. 3. The prosecution case, as disclosed at the trial is that one Chhoteylal, Constable No. 1190, Police Chowki Mathura Gate, Bharatpur, lodged a written report on 21st Aug., 83. at about 3.15 AM, at PS Kotwali, Bharatpur, alleging that at about 3 A.M. Manikchand, son of Moonshiram Jaat, aged about 10 years, accompanied by his neighbours, namely, Nathilal PW 4 and others, came to Police Chowki Mathura Gate, and informed that his brother Roopsingh, his mother Mst. Ramdei and his Bhabhi (brother's wife) Mst. Sohnidevi had been murdered by two persons at their hut, by axe. Among those two persons, one named Attarsingh who used to live earlier in front of their hut, was then residing near the railway station, and he (Manikchand) had identified him at the spot. Manikchand did not know the names of the other accused persons, but he told that he could identify that person, if he came before him. 4. On this report, the police registered a case u/s 302/34, IPC, as Case No. 440/83. On the basis of this written report of Chhoteylal Constable, the report was entered in the Roznamcha of the Kotwali-Bharatpur at No. 1131, which is Ex. P. 3. Then, on the basis of the written report Ex. P. 1, a regular FIR, Ex.P. 2 was prepared and investigation in this case started. After registering the case, immediately, the SHO, Omprakash PW 11 arrived at the spot at about 3.30 AM, and after day light, i. e., after 6 AM, he started investigation in this case. He prepared a Panchayatnama of the deadbody of Roopsingh, Ex P. 13; that of Mst. Ramdei Ex P. 14; and that of Mst. Sohnidevi Ex. P. 15. After registering the case, immediately, the SHO, Omprakash PW 11 arrived at the spot at about 3.30 AM, and after day light, i. e., after 6 AM, he started investigation in this case. He prepared a Panchayatnama of the deadbody of Roopsingh, Ex P. 13; that of Mst. Ramdei Ex P. 14; and that of Mst. Sohnidevi Ex. P. 15. Thus, there was triple-murder on that night From the spot, the SHO seized blood-stained earth where the dead bodies were lying, vide memo. Ex. P. 5, Ex. P. 6 & Ex. P. 7, in presence of motbirs Gulab and Sarman The SHO also recovered. 12-bore gun cartridges from the spot, vide memo Ex. P. 18. He also seized 66 pellets which were lying on the cot on which the deadbody of Roopsingh was lying vide memo Ex. P. 9. The SHO further seized two Duts from the spot, vide memo Ex. P. 10. He also seized from the spot one blood-stained Chaddar and Durry vide memo Ex.P. 11. Blood-stained Dhoti of Mst. Ramdei was also seized vide memo Ex. P. 12. The deadbodies were then taken to hospital and their post-mortem examination was conducted by Dr. B.L. Gupta PW 8. The post-mortem reports are Exs. P2I, P22 & P. 23. 5. Accused Narain alias Attarsingh was named by Manikchand, brother of deceased Roopsingh, when he informed Chhoteylal Constable about the murders. Narain accused was arrested by the police on 21st Aug. 83, vide arrest-memo, Ex. P. 16. On 28th Aug., 83, accused Narain, while in police custody, gave information Ex. P. 26 for recovery of an axe. On the basis of this information given by Attarsingh u/s 27 of the Indian Evidence Act, and in presence of motbirs, the police recovered the axe, and the recovery-memo is Ex. P. 17. A site-map was also prepared of the place from where the axe was recovered, which is Ex. P. 18. All the articles seized by the investigating officer, were seized and then sent for examination to the forensic science laboratory. The SHO also prepared a site-plan, Ex. P 4 in presence of motbirs. Some of the witnesses were examined by the investigating officer that very night when he (SHO) arrived at the spot, and some were examined later on After completing usual investigation, the police submitted a challan against the accused person for committing muiders of Roopsingh & Mst. Ramdei. The SHO also prepared a site-plan, Ex. P 4 in presence of motbirs. Some of the witnesses were examined by the investigating officer that very night when he (SHO) arrived at the spot, and some were examined later on After completing usual investigation, the police submitted a challan against the accused person for committing muiders of Roopsingh & Mst. Ramdei. in the court of CJM Bharatpur, who then committed the accused to the court of Sessions Judge, Bharatpur, for trial. 6. The learned Sessions Judge framed charge against the accused u/s 302, or in the alternative, u/s 302/34, IPC. The accused pleaded not guilty and claimed trial. 7. The prosecution to establish its case, examined 11 witnesses. The accused also examined 2 witnesses in his defence. The accused in his statement u/s 313, Cr. P. C., denied the allegations made against him and submitted a written statement. The contention of the accused was that he used to ply rickshaw-1 at Bharatpur. One of his brothers-in-law (Sala), Mewaram was murdered some 3-4 years before and another brother-in-law Mohanlal was injured, but he was saved. Mohanlal was lying with the accused and getting his medical treatment. While Mohanlal was getting his treatment, he was also murdered, because, he was the only eye-witness to the murder of Mewaram. The allegation of the accused is that the police in the murder of Mohanlal wanted to save Kalicharan and Bhoora etc. They had filed challan in the murder case of Mohanlal writing statements of the witnesses of their own accord, and showed Sahebsingh as absconder. The contention of the accused is that on account of the murder cases of Mewaram and Mohanlal, the police was not in happy relation with him, and he himself and his wife used to be harassed by the police. They were also beaten by the police for a number of days, who wanted that his wife should give evidence according to the whims of the police. They (police had also pressurised his wife for naming Keshav and Sahebsingh as accused and not naming Kalicharan and Bhoora. On account of all this, the police was not happy with him. He and his wife had refused to do what the police had stated to them. So, this was the reason that the police wanted to entangle him in a case. On account of all this, the police was not happy with him. He and his wife had refused to do what the police had stated to them. So, this was the reason that the police wanted to entangle him in a case. He has further alleged that no information was given by him to the police for recovery of the axe, but the police itself brought out an axe. So, according to him, the whole recovery was false. It was further alleged by the accused that character of Roopsingh, Mst. Ramdei and Mst. Sohnidevi was bad, and that they were living the life of prostitutes Moonshiram, according to him. the father of deceased Roopsingh, knew this fact, and he was not happy with his son, wife and daughter-in-law. While Moonshiram and others were living at Mohalla Sogria, persons of bad character used to visit his wife and daughter-in-law. In order to get rid of them Moonshiram left the Mohalla Sogria and purchased a plot of land at Surajpol and started living there. All the three, Roopsingh Mst. Ramdei and Mst. Sohnidevi then started living with Moonshiram, though he did not want that they should reside with him. Persons of bad character also started visiting the wife and daughter-in-law at that place also at night, and so, according to the accused, the murders in this case, were committed at the instance of Moonshiram himself. There was no enmity in between the accused and the deceased persons, and there was no reason for the accused for committing the murders of the deceased persons. 8. This is a case where three persons have been murdered. From the evidence on record, it reveals that Roopsingh, Mst. Ramdei and Mst. Sohnidevi were inflicted injuries by sharp weapons, and all of them died instantaneously at the spot. Dr. B.L. Gupta conducted post-mortem examination on the deadbodies of these three persons. According to him, Roopsingh deceased had the following external injuries on his person : XXX X X X XXX X X X The doctor also found fracture of right maxile near injury No. 1: fracture of frontal bone left side near injury No. 2; and also fracture of temporal bone near injury No 3. According to him, Roopsingh deceased had the following external injuries on his person : XXX X X X XXX X X X The doctor also found fracture of right maxile near injury No. 1: fracture of frontal bone left side near injury No. 2; and also fracture of temporal bone near injury No 3. The doctor also found brain-haemorrhage, and in his opinion, the death of Roopsingh occurred due to head injury resulting in brain haemorrhage and shock These injuries according to the doctor, were caused by sharp weapon and were sufficient in the ordinary course of nature to cause death. 9. Dr. B.L. Gupta also conducted the post-mortem examination on the dead body of Mst. Ramdei and he found the following external injuries on her person: X XX X XX X XX X XX He found fracture of left temporal bone near injury No. 1 and fracture on occipital bone on left side near injury No. 2. On internal examination of the dead body of Mst Ramdei, the doctor found haemorrhage of membrane and brain present. Both the lungs were tuberculosis. Haemorrhage was present of pericardium and heart. I here was dislocation of teeth of lower jaw. Spleen and kidney were congested. In his opinion, the death of Mst. Ramdei occurred due to brain-haemorrhage as a result of the head injury. The injuries, in the opinion of the doctor, were sufficient in the ordinary course of nature to cause death. 10. Dr. Gupta also conducted post-mortem examination on the dead body of Mst. Sohnidevi and found the following external injuries on her person: XXX X XX X X X X X The doctor also found fracture of lower half of sternum: frontal bone on left and right side: and right temporal bone. On internal examination of the dead body of Mst. Sohnidevi, the doctor found haemorrhage of membrance and brain present. Both the lungs were congested. Haemorrhage in heart was present liver, spleen and kidney were congested. In the opinion of the doctor, the death of Mst. Sohnidevi occurred due to brain haemorrhage causing shock as a result of the head injury. The injuries, in his opinion, were sufficient in the ordinary course of nature to cause death. 11. Both the lungs were congested. Haemorrhage in heart was present liver, spleen and kidney were congested. In the opinion of the doctor, the death of Mst. Sohnidevi occurred due to brain haemorrhage causing shock as a result of the head injury. The injuries, in his opinion, were sufficient in the ordinary course of nature to cause death. 11. Thus, from the statement of the doctor, who conduced the post-mortem examination on the dead bodies, and the post-mortem reports, it is clear that all the three persons died on account of injuries inflicted to them. The important point to be considered here is as to who had inflicted the injuries. However, it is clear that all the three persons died on account of the injuries inflicted to them. Hence, their death was homicidal in nature. 12. Mr. A. K. Gupta, the learned amicus curiae argued that the entire case depends on the solitary testimony of PW 1 Mankichand, who is a child witness. According to him, the statement of a child witness should be scrutinised very carefully and if the court finds the statement of a child witness trustworthy and worth credible, then only, conviction can be based on the solitary testimony, and when there are a number of infirmities in the statement of the child witness, it would be unsafe to base conviction on its basis. 13. In reply to the argument of the learned amicus curiae, the learned Public Prosecutor argued that conviction can be based even on the solitary statement of a child witness. In the present case, according to him, the statement of Manik chand PW 1 is reliable and trustworthy statement which is corroborated by the other prosecution evidence. So, he argued that there is no reason to discard the testimony of the child witness in this case. 14. A number of rulings were cited by both the learned counsel with regard to appreciation of statement of a child witness. 15. In Nawla v. The State of Rajasthan (1981 WLN (UC) (17) , which is a division bench case of this High Court, the statement of a child witness who had seen the incident, has been discussed. 14. A number of rulings were cited by both the learned counsel with regard to appreciation of statement of a child witness. 15. In Nawla v. The State of Rajasthan (1981 WLN (UC) (17) , which is a division bench case of this High Court, the statement of a child witness who had seen the incident, has been discussed. While dealing with that case, it has been observed that inconsistencies in-between previous statement and the statement at the trial and the conduct of the witness raised doubt about the presence of the child witness at the place of incident, and it was held that his statement was in a piece of corroborative evidence, and that did not lend support to the prosecution case. The learned Judges of the division bench discussed the evidence of Kirpa PW 1, who was 11 years of age at the time of incident and who was the sole witness in that case, and while discussing his testimony, it was observed that the sole witness in that case, did not stick to his previous statement, and he could not give proper explanation for the inconsistent versions which he gave at different times. It was also observed in that case that minor contradictions and discrepancies in the statements of the witness were natural, but when the prosecution case hinges on the solitary testimony of a child witness Kirpa (PW 1), the discrepancies and contradictions assume importance. It was also held that when the sole witness happens to be a child of 11 years of age at the time of the occurrence, his statement at the trial is after about two and half years, his competency is to be judged from his power of understanding at the relevant time and not subsequent to it. In such a case, it would be a legitimate demand to seek corroboration from other evidence. It was further observed in the above case that the prosecution case based on the sole testimony of Kirpa (PW 1), a child witness, without there being corroboration of any sort cannot be said to be established beyond reasonable doubt, so as to in justify the conviction of the appellant. 16. It was further observed in the above case that the prosecution case based on the sole testimony of Kirpa (PW 1), a child witness, without there being corroboration of any sort cannot be said to be established beyond reasonable doubt, so as to in justify the conviction of the appellant. 16. In Karunakaran v. State of Tamil Nadu ( AIR 1976 SC 383 ) a which was a case u/s 302, IPC and where also death sentence was awarded to the accused-appellant, their Lordships of the Supreme Court discussed the point where conviction could be based on the testimony of a sole witness. While dealing with this aspect, it was observed therein as under : XX XX XX XX 17. Learned Public Prosecutor has relied on the case of Suresh v. State of U. P. ( AIR 1981 SC 1122 ) ,3 wherein it has been observed as under: X X XX X X XX 18. The learned Public Prosecutor also argued that in this case, Manakchand PW 1 was cross-examined at length, and he gave a detailed version of the occurrence. According to him he cannot be treated to be a tutored witness. To support his aforesaid contention, the learned Public Prosecutor relied on the case of Sadhusingh alias Surya Pratap Singh v. State of U.P. ( 1978 (4) SCC 428 ) , wherein, their Lordships of the Supreme Court observed that a child witness who withstood long gruelling cross-examination and gave minute details of event could not be then said to be tutored. 19. In Sitaram v. The State of Madhya Pradesh ( (1975) 4 SCC 171 ) their Lordships of the Supreme Court, have observed as under : X X XX X X X 20. Thus, after perusing the law cited above by both the learned counsel we find that the statement of a solitary child witness is to be judged minutely and to be scrutinised carefully. A statement of a child witness needs corroboration. If his statement is corroborated by other evidence on the record, then, there is no hesitation in accepting the statement of the child witness. So, before relying on sole testimony of the child witness, the entire statement of the witness, Manikchand PW 1 is to be perused minutely and scrutinised in detail. A statement of a child witness needs corroboration. If his statement is corroborated by other evidence on the record, then, there is no hesitation in accepting the statement of the child witness. So, before relying on sole testimony of the child witness, the entire statement of the witness, Manikchand PW 1 is to be perused minutely and scrutinised in detail. If his statement on scrutiny, is found to be reliable and trustworthy, then, there is no doubt conviction can be based on his testimony. But, if on scrutiny, the statement of Manikchand PW1 the solitary child witness is found to be unreliable and if inconsistencies and infirmities are found therein which are of material value, then, conviction cannot be based on his sole testimony, whose statement is not corroborated by other evidence adduced by the prosecution. So, the crux of the rulings is that the solitary testimony of a child witness can be relied upon if his statement is trustworthy, reliable and corroborated by other evidence So, the statement of Manikchand PW 1 needs minute, detail and intensive scrutiny. 21. The learned Public Prosecutor argued that in a case where death-sentence is to be confirmed by the High Court, it is for the High Court to assess the whole evidence itself, and after independent scrutiny and assessment of the entire evidence, conclusion should be arrived at whether a case has been established against the accused or not. According to him, the mere reasons given by the trial court should not be accepted, but it is for the High Court itself to assess the whole evidence independently. We agree with this principle of law enunciated by the Supreme Court. 22. In State of Rajasthan v. Sua etc. etc. ( 1984 RLR 723 ) , the case was decided by a division bench of this High Court in which, Justice G. K. Sharma was a member. In that case, it was observed as under : XX XX XX XX Keeping in mind the above principle, we have examined minutely and in detail, the entire evidence produced by the prosecution to establish its case. 23. PW 1 Manikchand who is brother of deceased Roop Singh, is the only eye-witness to the occurrence in this case. He is the star witness. 23. PW 1 Manikchand who is brother of deceased Roop Singh, is the only eye-witness to the occurrence in this case. He is the star witness. As argued by the learned counsel (amicus curiae) Mr Gupta, this witness who is a child witness aged about 11-12 years should not be relied upon at all. According to Mr. Gupta, Manikchand PW 1 is not a witness of sterling worth, and no reliance should be placed on his testimony. Mr. Gupta also argued that except the statement of Manikchand PW 1, there is no other evidence on record to establish the case against the accused. 24. We would now like to deal with the first argument of the learned amicus curiae that the report, Ex. P. 1 submitted by Chhoteylal, Constable No. 1190, is a concocted report. According to the prosecution case, Manikchand PW 1, son of Moonshiram along with Nathilal PW 4 and two other neighbours had gone to Police Chowki Mathura Gate at about 3 AM. The occurrence took place at about 2-30 A.M. Immediately when the accused left the Jhopri (hut) after committing the murders, Manikchand PW 1 came out of the hut and went to the house of Nathilal PW 4 Manikchand and Nathilal then went to police station and informed Chhotey lal Constable of the incident. According to Chhoteylal, he was narrated the story by Manikchand who told that two persons had murdered his brother, mother and Bhabhi by axe, and that, he could identify one of those two persons, who was accused Attarsingh. Constable Chhoteylal sent back Manikchand with two Home Guard personnel to the spot, and he himself went to Kotwali, Bharatpur, where he lodged the report, Ex.P. 1. Thus, the report, Ex. P.l was not lodged by Manikchand PW 1, but by Chhoteylal, Constable No. 1190. The important point to be considered here is as to why the report was not lodged by Manikchand himself. Why did Chhoteylal not take Manikchand and Nathilal along with him to Kotwali. Bharatpur for lodging the report the matter was reported at the Mathura-Gate Police Chowki, but no report was entered in the Roznamcha of the Mathura Gate Police Chowki. When cross-examined on this point, Chhoteylal PW2 said that Roznamcha was not kept at the Police Chowki, but, it was kept at the Kotwali. He, therefore, went to Kotwali, gave the report in writing (Ex. When cross-examined on this point, Chhoteylal PW2 said that Roznamcha was not kept at the Police Chowki, but, it was kept at the Kotwali. He, therefore, went to Kotwali, gave the report in writing (Ex. P. 1), and on the basis of this report Ex P.l. a report was lodged in the Roznamcha Register, which is Ex. P.3. Then, on the basis of this report, Ex. P.3, a regular FIR (Ex. P.2) was prepared Chhoteylal also stated in his cross- examination that he was not the incharge of the Police Chowki, Mathura-Gate, but, an ASI was in-charge, and that, on that night, the ASI was not at the Police Chowki, but he had gone to Police Kotwali, Bharatpur. Chhoteylal did not give any reason or cause for the ASPs going to Kotwali. However, it is clear that the ASI was the incharge of the Police Chowki, Mathura Gate, and he was not present there when the report is alleged to have been lodged by Manikchand PW1. During the course of arguments, we asked the learned Public Prosecutor to show us any provision in the police rules where it is laid down that Roznamcha is not to be kept at Police Chowki but, the learned Public Prosecutor could not reply to our query and every time, he avoided this question. Anyway, it cannot be believed that at a Police Chowki, there would be no Roznamcha Register. An officer of the rank of ASI was posted as in-charge of the Police Chowki, and he would not keep Roznamcha Register at the Chowki, cannot be believed. If this was a fact, that no Roznamcha Register was kept at the Police Chowki, then, the Public Prosecutor ought to have shown us the rule and satisfied us that Roznamcha Register is not kept at the Police Chowki. Therefore, the statement of Chhoteylal that no Roznamcha Register was kept at the Police Chowki Mathura Gate, is an incorrect statement, and we do not believe that no Roznamcha Register was kept at the Police Chowki. The important aspect is that when Manikchand PW 1 came to Police Chowki, Mathura Gate and told Chhoteylal and three murders had been committed by the accused, and companions on his report should have been written at the Roznamcha of the Police Cowki, Mathura Gate. The important aspect is that when Manikchand PW 1 came to Police Chowki, Mathura Gate and told Chhoteylal and three murders had been committed by the accused, and companions on his report should have been written at the Roznamcha of the Police Cowki, Mathura Gate. The fact that Manikchand and Nathilal were not taken by Chhoteylal to Kotwali Bharatpur for lodging the report, also gives an adverse inference Chhoteylal Constable was not eye-witness to the incident, but Manikchand PW-1 was the sole eye witness. So, it was the duty of Chhoteylal Constable to have taken Manikchand to Kotwali Police, for lodging the report. For not taking Manikchand to Police Kotwali, for the reason best known to the prosecution, we have nothing to say in this respect, except that it creates doubt in the genuineness of the report, Ex. P 1. 25. Another aspect in this regard is that according to Chhoteylal PW 2 when Manikchand and Nathilal came to Police Chowki, Manikchand gave name of one of the assailants as Attarsingh. Chhoteylal also has mentioned this fact in the report. Ex. P. 1 and written that Manikchand had identified one of the two assailants and he gave his name as Attarsingh. But, Nathilal PW 4 has contradicted this aspect. He has stated that Manikchand came to his house and told him that his brother and Bhabhi had been murdered, and so, to take them to hospital. He (Nathilal) inquired from him as to who had murdered them, but, Manikchand did not name anybody. He then called another neighbour Pooran, and then, he himself and Pooran took Manikchand to Police Chowki, Mathura Gate where he (Nathilal) narrated the entire fact to constable Chhoteylal. Nathilal has stated that the police constable had asked him the name of the person who had murdered the deceased perso, but, he replied that he did not know, because, Manikchand also did not give him name of any assailant. 26. Similar is the statement of Pooran PW 5. He has also stated that in night, at about 2-30 AM, Nathilal called him from the road. He, thereupon, came out of his house. Two sons of Moonshi were with Nathilal, one of whom was Manikchand. He has also stated that neither Nathilal nor Manikchand told anything to him about committing murder of Manikchand's family members. He with them came to Police Chowki. He, thereupon, came out of his house. Two sons of Moonshi were with Nathilal, one of whom was Manikchand. He has also stated that neither Nathilal nor Manikchand told anything to him about committing murder of Manikchand's family members. He with them came to Police Chowki. He had come back after leaving Manikchtnd at the Police Chowki. 27. So from the statements of the above two witnesses, namely, Nathilal PW 4 and Pooran PW 5, the statement of Chhoteylal PW 2, is contradicted. They have stated that the name of the assailant was not given by them. So, the correctness of the report, Ex P. 1, becomes doubtful. 28. Another important aspect as regards the report Ex. P. 1 is that, in the report, it has been mentioned that Manikchand informed that his brother Roopsingh, his mother Mst. Ramdei and his Bhabhi, Mst. Sohnidevi had been murdered by two persons with axe. Manikchand in his court-statement, has stated that he had seen axe in the hands of Attarsingh, and knife in the hands of his companion. Attarsingh inflicted blows to Roopsingh with the axe while his companion inflicted knife-blow to Mst. Sohnidevi. Thus, in the court-statement, weapon knife has been introduced. Manikchand did not tell Chhoteylal that the companion had a knife in his hands and that he inflicted knife blow to Mst. Sohnidevi. There was no mention about the knife in the hands of one of the assailants, but, the contention was only that the assailants had inflicted axe-blows and thereby they committed the murders, and no allegation of knife was there. So, this was an improvement in court statement, and it falsifies the report Ex P. 1. Chhoteylal PW 2 has not stated that Manikchand had told him that one of the assailants had a knife in his hand. The statement of Manikchand u/s 161, Cr.P.C. was also recorded, which is Ex D. 2. In that statement, Manikchand only stated that the victims were murdered by axe. He did not state therein that knife was with one of the assailants. So, it seems that the weapon, knife, was introduced in the court statement. Had it been a fact that one of the assailants had a knife in his hand, Manikchand would have stated so to Chhoteylal Constable, PW 2, and also he would have mentioned it to Nathilal PW 4 and Pooran PW 5. So, it seems that the weapon, knife, was introduced in the court statement. Had it been a fact that one of the assailants had a knife in his hand, Manikchand would have stated so to Chhoteylal Constable, PW 2, and also he would have mentioned it to Nathilal PW 4 and Pooran PW 5. This also creates suspicion in the correctness of the report, Ex P. 1. 29. Now we proceed to examine the statement of Manikchand PW 1, who is the solitary eye-witness and star witness in this case. 30. Manikchand PW 1 has stated that he was sleeping with his brother Roopsingh. His younger brother Shyamsunder was sleeping with his mother Mst. Ramdei. Roopsingh and Mst. Ramdei were sleeping in one hut and his Bhabhi Mst. Sohnidevi, in another hut. There was a common wall and a gate in between the two huts. Actually, these were not two different huts, but, one hut having two compartments, one compartment was 2 feet higher than the other compartment. In between these two compartments, there was a wall and a gate. The first compartment which was higher, had a gate opening on the road. So, in the second hut, where Mst. Sohnidevi was sleeping, its entrance was through the hut where Roopsingh was sleeping; and both the huts had a common door on the roadside. Manikchand has then stated that Attarsingh came in the night at about 2-45 AM accompanied by one more person. When his brother Roopsingh shouted, he (Manikchand) got up. There was a light (chimney) in the Chhappar Attarsingh had an axe in his hand. He saw a knife in the hand of Attarsingh's companion. Attarsingh then inflicted axe-blows on the neck of his brother Roopsingh. Attarsingh thereafter inflicted axe-blow on the shoulder of his mother, Mst. Ramdei. The companion of Attarsingh inflicted name blow to his Bhabhi, Mst. Sohnidevi. He (Manikchand) then went under the cot and saw infliction of blows. While Attarsingh was leaving the Chhappar, he opened fire also. Manikchand has also stated that one day before the occurrence, Attarsingh had come to their house and inquired from him about his father, whereupon, he had told him that his father had gone out for the last 4-5 days and that, he did not know as to when he would return. This witness Manikchand was cross-examined at length. His cross-examination is an important one. 31. This witness Manikchand was cross-examined at length. His cross-examination is an important one. 31. The first cross-examination of Manikchand was with regard to light. In his examination-in-chief, he stated that there was a light (chimney) in the Chhappar. In his cross-examination, he has said that they used to lit chimney in the chhappar and that, that night also, the chimney was on. He also stated that when the police came to the spot, his statement was recorded, but, he did not tell the police about the light. He did not show the police where the chimney was kept. He has stated that when the accused came there, there was light in the Chhappar. He has also stated that at the Mathura-Gate Police Chowki, he did not tell the police constable that there was light in the Jhopri and that one chimney "was a on Tukhta. In his police statement, Ex.D.2 this witness stated that they" chet ho gaya to maine chimney ke ujala me jo un admiyon me se jala rakhi thee dekha". He (Manikchand) in his cross examination has denied to have given this statement in the police. From this statement, it appears that when the accused came there, they lighted the chimney and in the light, Manikchand recognised one of them as Attarsingh. In his court statement, this witness has stated that every night, they used to keep the chimney on and that, that night also, there was light. This is a very important aspect. The occurrence took place at 2-30 AM. The only source of identifying accused Attarsingh for Manikchand PW 1 was chimney-light. So, whether there was light or not, and whether Manikchand could identify Attarsingh in that light or not, has a great bearing on this case. 32. PW 11, Omprakash, the investigating officer has stated that at about 3-30 AM, he reached the spot, and thereafter started investigation at about 6 AM. But, he has specifically stated that before starting the investigation at 6 AM, he had recorded the statement of Manikchand, and Chhoteylal. So, the statements of Manikchand and Chhoteylal were recorded by the investigating officer Omprakash PW 11 before preparing site-plan, Ex. P. 4. There is no mention in the report, Ex. P. 1 that Manikchand had identified one of the assailants in the chimney-light. Chhoteylal does not say that Manikchand had told him that he had identified Attarsingh in the chimney-light. So, the statements of Manikchand and Chhoteylal were recorded by the investigating officer Omprakash PW 11 before preparing site-plan, Ex. P. 4. There is no mention in the report, Ex. P. 1 that Manikchand had identified one of the assailants in the chimney-light. Chhoteylal does not say that Manikchand had told him that he had identified Attarsingh in the chimney-light. In his police statement, Manikchand stated that there was light of chimney in the chhappar, and in that light, he had identified accused Attarsingh. So, this aspect that Manikchand had identified accused Attarsingh in the chimney light, was known to the investigating officer prior to preparing the site-plan Ex. P. 4. In the site-map, Ex. P. 4, the investigating officer has not shown the place where the chimney was being kept. The SHO Omprakash PW 11 recorded the statement of Manikchand and he came to know that Manikchand had identified accused Attarsingh in the chimney-light. So, this was a material point, and investigating officer should have noted the place in Ex. P. 4 where the chimney was being kept. It is in the evidence that there was no light in the second chhappar where Mst. Sohnidevi was sleeping. In between the two Jhopris, there was a common wall. At which place, the chimney was on, was very important, because, it has to be seen whether the light of the chimney was going to the place in the second chhappar where Mst. Sohnidevi was sleeping Manikchand PW 1 witnessed the occurrence while he was under the cot. This is to be seen whether Manikchand could see the place in the second chhappar where Mst. Sohhidevi was sleeping where there was no light. How could Manikchand see what was happening in the second chhappar when there was no light? So, whether the light of the chimney where Roopsingh was sleeping was extending to the chhappar where Mst. Sohnidevi was sleeping, so that Manikchand could see infliction of knife blow to Mst. Sohnidevi, was a very important aspect. So, in such circumstances, it was very important for the investigating officer to have noted in his site-plan, Ex. P. 4 as to at which place, the chimney was kept. The Investigating Officer, when cross-examined, replied that when he reached the spot, then there was no light in the Jhopri and that one extinguished chimney (lamp) was lying on the floor. P. 4 as to at which place, the chimney was kept. The Investigating Officer, when cross-examined, replied that when he reached the spot, then there was no light in the Jhopri and that one extinguished chimney (lamp) was lying on the floor. He has not stated whether the chimney was in the lighted condition. He has stated that he did not mention in site-map, Ex. P. 4 regarding the chimney, because, he did not feel it of any importance. He also stated that he did not see as to whether the chimney was on in the upper-chhappar or in the lower chhappar. So, the investigating officer did not feel it necessary to investigate whether there was any light in the chhappar, or at which place, the lamp was lying, or whether from that light there could be so much light that Manikchand PW 1 could see the occurrence in the other chhappar. Very strange investigation. This type of investigation in not a correct one, and we can only regret it. 33. In his court statement, Manikchand PW 1 has stated that in the chhappar. chimney was lighted, but. actually, this is a false statement. Had there been any light in the chappar, Manikchand would have pointed it out to the investigating officer when he came to the spot the very night, and the investigating officer also would have noted it in the site plan. Manikchand also would have told it to Chhoteylal PW 2. 34. Gulab PW 3 was one of the motbirs when the site-plan Ex. P. 4 was prepared by the investigating officer. The site was inspected in his presence by Omprakash PW 11. He has signed the site-plan. Ex. P. 4. He has stated that when he reached the spot, there was no light, and there was darkness. In both the Jhopris, for light purpose, lamps were kept. On the higher Jhopri, a lantern was hung. But, he has stated that there was no light. This shows that subsequently, in the statement of Manikchand the story of chimney/light, was introduced. How could Manikchand identify accused Attarsingh is to be established. This could be possible only when there was light, so that, he could see the accused in that light. But, from the statements of Manikchand and the other prosecution witnesses, and also from the site plan, Ex. P. 4, we find that Manikchand is a liar. How could Manikchand identify accused Attarsingh is to be established. This could be possible only when there was light, so that, he could see the accused in that light. But, from the statements of Manikchand and the other prosecution witnesses, and also from the site plan, Ex. P. 4, we find that Manikchand is a liar. Actually, there was no light in the chhappar. Simply 1o establish a case against the accused, the police has introduced this fact in the statement of Manikchand, which has been disproved by the other evidence and also by the site-plan, Ex. P. 4. So, we do not believe the statement of Manikchand so far as the chimney/light is concerned, and we also do not believe the prosecution story regarding the light There was no light in the chhappar, and it was not possible for Manikchand to witness the occurrence in the darkness 35. Manikchand PW 1 has stated that he was sleeping with his brother Roopsingh. When his brother shouted, he got up, and then went under the cot, and from there, he saw the occurrence. In his cross-examination, he has said that he went under the cot on account of fear. When the accused persons entered into the room and started doing their job, he went under the cot. It means that as soon as the accused, Attarsing and his companion entered into the chhappar. Marik and got up from the cot and went under it. So, this witness has contracted his own statement that when his brother shouted, he got up from the cot and went under it. In his cross-examination, he has said that he went under the cot while his brother and Bhabhi were being beaten. Now, this is the third story. According to the prosecution story, Roopsingh was beaten first; and then, Mst. Ramdei was inflicted blow; and later on. Mst. Sohnidevi was stabbed. So, when Manikchand went under the cot, there are contradictory statements to this effect. Manikchand has given three statements contradicting each other It is not clear as to when he got up from the cot, and when he went under it. Then a person who is under a cot, cannot see what is happening on the cot So. So, when Manikchand went under the cot, there are contradictory statements to this effect. Manikchand has given three statements contradicting each other It is not clear as to when he got up from the cot, and when he went under it. Then a person who is under a cot, cannot see what is happening on the cot So. if Manikchand had been under the cot prior to infliction of axe-blow to Roopsingh, then, he could not have seen the actual infliction of blow, and had he been under the cot after the infliction of the blow to Roopsingh then too, he could not have seen that infliction because he was sleeping. He got up from the cot when Roopsingh shouted being inflicted axe-blow. So, prior to shouting by Roopsingh, Manikchand could not have seen what was happening to Roopsingh. If this story is believed for a moment that as soon as the accused persons entered into the room, he got up from the cot and went under it, then too he could not see the actual infliction of blows to Roopsingh who was on the cot. How a person could see from beneath a cot the fact that was happening on the cot ? He was under the cot. So he could not see what was happening on the cot on which Roopsingh was lying. Similarly, he could not fee from under the cot what was happening in the second chhappar where Mst. Sohnidevi was sleeping. So, the whole statement of Manikchand is most unreliable and false statement. He has been tutored to say that from under the cot, he could see all the happenings that had taken place in the chhappar. 36. We have discussed above that the story of the light in the Chhappar is a false story and has been falsely introduced by the prosecution. So, in a dark night when there was no light and when Manikchand was under the cot, he could not have seen what was happening on the cot or in the other chhappar. So, this is a most unbelievable statement. Nobody can even think or imagine about the correctness of the statement of Manikchand. So, in a dark night when there was no light and when Manikchand was under the cot, he could not have seen what was happening on the cot or in the other chhappar. So, this is a most unbelievable statement. Nobody can even think or imagine about the correctness of the statement of Manikchand. We are fortified with the case of State of Rajasthan v. Balbirsingh and another ( 1979 WLN 501 ) , which is a decision of a division bench of our own High Court, and wherein it has been observed as under: "If there had been light of electric-bulb prevailing in the courtyard of the house wherein murders were committed, this source of light no doubt would have been certainly mentioned in the first information report. Omission from the FIR of this alleged source of light is of material significance specially when no such existing source of light was mentioned in the site inspection memo and in the site-plan even by the investigating officer. Consequently, we have no hesitation in holding that there was no source of light in the courtyard to enable Gurdeep Kaur to see the faces of the culprits at the time when they were striking blows on the body of Punjab Kaur with sharp-edged weapons." In State of U.P. v. Hari Prasad and others ( AIR 1974 SC 1740 ) , their Lordships of the Supreme Court have observed as under: "(A) The murder in question was committed on a dark night. The allegations of the prosecution were that the accused had a motive to commit the murder of the complainant but mistook the deceased, a family priest of the accused, for the complainant and murdered him and that the witnesses identified the accused in the light of a lantern burning near the place of occurrence : Held that the existence of lantern was doubtful. If it was there it was highly unlikely that the accused would commit a mistake of such a grave nature. Hence, the accused were entitled to the benefit of doubt. Decision of Allahabad High Court, affirmed." 37. Thus, not mentioning in the report Ex. If it was there it was highly unlikely that the accused would commit a mistake of such a grave nature. Hence, the accused were entitled to the benefit of doubt. Decision of Allahabad High Court, affirmed." 37. Thus, not mentioning in the report Ex. P. 1 that there was light at the time of the commission of the offence, and also for the reason mentioned and discussed above that the statement of Manikchand PW 1, the sole eye-witness is unreliable on this respect coupled with the fact that the SHO Omprakash did not mention in the site-plan about the place where the chimney was kept, the cases cited above are of great help to the accused. 38. It was argued by the learned Public Prosecutor that the identity of a person can be established by voice and features also. He argued that Manikchand PW 1 has stated that his brother Roopsingh shouted the name of Attarsingh. So, apart from the light in the chhappar, Manikchand knew that Attarsingh had inflicted blow to Roopsingh. Thus, according to the learned Public Prosecutor, Manikchand has correctly identified the accused. 39. We do not agree with the above argument of the learned Public Prosecutor. No doubt, Manikchand has stated so in his statement in court, but in his police statement, he did not state that Roopsingh had shouted the name of Attarsingh. He did not tell Chhoteylal this fact at Police Chowki-Mathura Gate when he went there and narrated the occurrence to him. This shows that an improvement in the statement of Manikchand was made to the effect that Roopsingh had shouted the name of Attarsingh. Therefore, on this aspect, we do not believe the statement of Manikchand PW 1. 40. Another aspect to judge the truthfulness of Manikchand is that he was sleeping with his brother Roopsingh on the same cot. Axe-injury was inflicted on the Roopsing and that was with such a force that he died instantaneously, but, there was no injury to Manikchand. He was also sleeping with his brother. It is not believable that the assailant would inflict blow in such a way that it would hit only on the neck of Roopsingh and there would be no injury to Manikchand, and the axe would not even touch the body of Manikchand. This is highly an improbable proposition. He was also sleeping with his brother. It is not believable that the assailant would inflict blow in such a way that it would hit only on the neck of Roopsingh and there would be no injury to Manikchand, and the axe would not even touch the body of Manikchand. This is highly an improbable proposition. It cannot be imagined that Manikchand who was sleeping with his brother, would not receive any sort of injury by the axe. This again shows that Manikchand is a liar. He was not sleeping with his brother Roopsingh. He has been made out, concocted and tutored to say that he was sleeping with his brother, and that, he had seen the entire incident. This aspect further shows that Manikchand PW 1 is a most unreliable witness. 41. Another aspect is that when he had been to Police Chowki-Mathura Gate, he told Chhoteylal Constable that two persons had murdered his brother his mother and his Bhabhi with axe-blows, but he did not tell Chhoteylal that Attarsingh had inflicted axe-blow on the neck of Roopsingh. In his court statement, Manikchand was made to say that Attarsingh had inflicted axe-blow on the neck of his brother. In his police statement, Ex D. 2. Manikchand stated that Attarsingh had given axe-blow to his brother Roopsingh, and that he was thereby murdered. In that statement, he did not state that axe-blow was inflicted on the neck of Roopsingh. This witness was confronted in cross-examination and he admitted that it was not got written by him in his police statement that Attarsingh had inflicted axe-blow on the neck of Roopsingh. Why this departure from the police statement ? Why the prosecution introduce this fact in the mouth of Manikchand that Attarsingh had inflicted axe-blow on the neck of Roopsingh? This further shows that Manikchand has been tutored. 42. Another aspect which shows that Manikchand is an unreliable witness, is the statement of Dr. B.L. Gupta PW 8. This doctor conducted the post-mortem examination on the dead bodies. Regarding Roopsingh, his report is Ex. P. 21. According to the doctor, Roopsingh had four injuries three incised wounds and one penetrating wound. Manikchand stated that Attarsingh had inflicted one axe-blow on the neck of Roopsingh. He did not state that Attarsingh had inflicted more than one blow. This doctor conducted the post-mortem examination on the dead bodies. Regarding Roopsingh, his report is Ex. P. 21. According to the doctor, Roopsingh had four injuries three incised wounds and one penetrating wound. Manikchand stated that Attarsingh had inflicted one axe-blow on the neck of Roopsingh. He did not state that Attarsingh had inflicted more than one blow. Thus, according to Manikchand PW 1 there should have been only one injury on the neck of Roopsingh deceased. Th ere is no other evidence except that of Manikchand PW 1 to prove that infliction of blow. The statement of Manikchand in this regard, is again falsified by the statement of Dr. Gupta PW 8 and his post mortem report. According to the doctors statement. Roopsngh had four injuries on his person-three of them were incised wounds and one was penetrating wound. The situation of all the three wounds was at different places-one injury was on the light side of the nose; the second was just above the left eye; the third was above left ear; and the fourth injury, which was penetrating wound, was on the right ear. The position of all these injuries indicates that they could not be caused by a single below. It seems that these injuries to Roopsingh were caused by different blows. Thus the statement of Manikchand is falsified on this ground that accused Attarsingh had inflicted only one blow to Roopsingh. If it is a fact that Manikchand had witnessed the infliction of the injury, then, how these four injuries were found at different places of the body of Roopsingh? It means that Manikchand was not an eye-witness to the infliction of blow. Apart from this, according to Manikchand. accused Attarsingh had inflicted injury on the neck of Roopsingh, but there was no injury on the neck of Roopsingh Dr. Gupta PW 8. in his cross-examination, has replied that he did not find any injury on the neck of Roopsingh. So, the statement of Manikchand that accused Attarsingh had inflicted axe-blow on the neck of Roopsingh, is falsified by the statement of Dr. B.L. Gupta PW 8. 43. The aspect which further proves that the statement of Manikchand FW 1 is false, is that, Manikchand, in his statement has stated that Attarsingh had inflicted axe-blow on the shoulder of his mother, Mst. Ramdei. B.L. Gupta PW 8. 43. The aspect which further proves that the statement of Manikchand FW 1 is false, is that, Manikchand, in his statement has stated that Attarsingh had inflicted axe-blow on the shoulder of his mother, Mst. Ramdei. He did not state that Attarsingh had inflicted more than one blow to Mst. Ramdei. So, according to Manikchand PW I, accused Attarsingh had inflicted only one blow with axe to Mst. Ramdei and that blow was on her shoulder Regarding Mst Ramdei, the post-mortem report of Dr. Gupta is Ex. P 22. The doctor has stated that there were two incised wounds on her body one on temporal region just lateral posteriorly to to left ear, and the second was just near occipital protuberances oblique in direction. These injuries made fracture of left temporal bone and occipital bone. No injury was found by the doctor on the shoulder of Mst. Ramdei. So, the statement of Manikchand is also falsified so far as the injury to Mst. Ramdei is concerned. 44. The learned Public Prosecutor could not explain the discrepancy and infirmity in the statements of Manikchand PW 1 and Dr. B.L. Gupta PW 8. It was argued by him that in face of eye-witness, the doctors statement can be overlooked. We do not agree with this argument of the learned Public Prosecutor. The doctor conducted the post-mortem examination immediately on the deadbodies. He has mentioned in the post-mortem reports about the injuries. Why a doctor would record false juries about the deceased persons? What interest had the doctor had in the accused that he might give a false statement and record false injuries about the deceased persons? The doctor has specifically stated that there was no injury on the neck of Roopsingh, and also that there was no injury on the shoulder of Mst. Ramdei. We have discussed above, the statement of Manikchand PW 1 and on so many aspects, we find him most unreliable and untrustworthy witness. In our considered opinion, he is a tutored witness. He being a child-witness, has been asked and tutored to give a particular statement which he narrated in the court contradicting his own statement in the police, Ex. D. 2. So, we see no reason to disbelieve the statement of Dr. B.L. Gupta PW 8 and his post-mortem reports Ex P. 21 & Ex. P. 22. He being a child-witness, has been asked and tutored to give a particular statement which he narrated in the court contradicting his own statement in the police, Ex. D. 2. So, we see no reason to disbelieve the statement of Dr. B.L. Gupta PW 8 and his post-mortem reports Ex P. 21 & Ex. P. 22. The whole case of the prosecution falls on the ground because Manikchand, the alleged eye-witness to the occurrence in this case, is wholly an unreliable witness. Had he seen the the actual infliction of blows by Attarsingh accused, he would not have stated wrongly that Attarsingh had inflicted axe-blow on the neck of Roopsingh and axe-blow on the shoulder of Mst. Ramdei. We have discussed above that the position of Manikchand PW 1 was such that he could not have seen the actual infliction of blows from under the cot, also for the reason that there was no light at all. So, the statement of Manikchand is most unreliable statement, and in view of the statement of Dr. Gupta and his reports, we place no reliance on the testimony of Manikchand PW 1. Therefore, the prosecution has failed to prove that the injuries in this case, were inflicted by Attarsingh accused. 45. According to the statement of Manikchand PW 1, though contradictory on hearing the cry of Roopsingh he got up from the cot and went under the cot, from where, he witnessed the entire occurrence. According to him, there was light in the chhappar, and in that light, he could see accused Attarsingh. So, it was also possible that when he got up from the cot and went under it, he must have seen by accused Attarsingh. It cannot be believed that Manikchand alone could see accused Attarsingh, but Attarsingh could not see him. Then, Attarsingh inflicted blows to Roopsingh and Mst. Ramdei and thereby killed them at the spot. The accused knew that Manikchand was the sole eye-witness to the occurrence, so, would the accused spare Manikchand and leave him there to give evidence against him in the court? When the assailant could murder two persons, where was the hitch or hesitation in murdering Manikchand, who was the sole eye witness to the occurrence and who could depose against him in the court? But, there w ts no assault on Manikchand PW 1. When the assailant could murder two persons, where was the hitch or hesitation in murdering Manikchand, who was the sole eye witness to the occurrence and who could depose against him in the court? But, there w ts no assault on Manikchand PW 1. Neither injury was caused to him; nor any harm was caused, and he was spared by accused Attarsingh for the purpose of allowing him to appear in the court and expose him that he (Attarsingh) was the murderer of his brother and mother. This aspect cannot be believed. So, in our considered view, neither Manikchand was sleeping in the chhappar with his brother Roopsingh, nor did he see the actual infliction of blows. This is false to say that he was sleeping with his brother and when his brother shouted, he got up from the cot and went under it from where he witnessed the entire occurrence. The entire story appears to be a made out story which was narrated to him. Manikchand was to be created a witness, and for this purpose, the prosecution made out this story which was narrated by him. So, we do not believe Manikchand on this aspect also, as he is an unreliable witness. 46. Another aspect which reflects that Manikchand is a false witness, is that, there is infirmity in - between the statements of Manikchand and his father, Moonshiram. Admittedly, Moonshiram was not present at his house on that fateful night who returned on the next day. He has been examined as PW 7. He has stated that on 17th Aug, 83, he had gone to his Nanihaal (maternal grandmother's house). He returned on 21st Aug., 83 in the noon at about 1 O'clock. At his house, he met two police personnel, who then narrated the occurrence to him. He. thereupon, went to hospital where he saw the dead bodies of his son, wife and daughter-in-law, and then took the dead bodies for cremation. Manikchand was brought to the cremation by the police personnel, and there, Manikchand told him that Attarsingh had killed them by axe and knife. In his cross-examination, this witness has specifically stated that at about 4 PM-5 PM at the cremation-ground, the police had brought Manikchand where he talked to him. Manikchand was brought to the cremation by the police personnel, and there, Manikchand told him that Attarsingh had killed them by axe and knife. In his cross-examination, this witness has specifically stated that at about 4 PM-5 PM at the cremation-ground, the police had brought Manikchand where he talked to him. He denied to have given this statement to the police under section 61 Cr.P.C. But, from his statement, it is clear that he returned home on 21st Aug., 83 round about 1 O'clock, thereafter, in the evening at about 4-5 PM, for the first time, he talked to his son Manikchand where Manikchand narrated the whole fact to him. Manikchand PW 1, in his cross-examination, has replied that his father had come back on the same day when Roopsingh and Mst. Ramdei had been murdered. He (Manikchaud) did not tell anything to his father at their house. His father was informed by the police personnel about the occurrence He also had gone to cremation ground. He has specifically stated that his father had arrived at the house in the morning at about 8 O'clock, but, he met his father in the evening. He (Manikchand) has denied that he met his father at 8-9 PM. Thus, according to the statement of Manikchand, Moonshiram came back to his house at about 8 AM. It cannot be believed that Moonshiram would not talk to his son Manikchand about the incident. In the family of Moonshiram, three members had been murdered. There retrained only two children alive, one Manikchand, aged 11-12 years, and the other, his younger brother. Shyamsunder. So, it was natural that Moonshiram on his return to his house would inquire from Manikchand about the occurrence, who would also inquire as to who had killed the victims. Manikchand who had the darkness to go the police chowki at 3 AM and narrate the entire story to the police constable Chhoteylal, would not say anything about occurrence to his father? This was an unnatural conduct of Manikchand PW I, which cannot be believed. His brother, mother and Bhabhi were killed. So, naturally he would say to his father immediately on his arrival at the house that such and such thin& had happened and that, Attarsingh had murdered the three members in the family. This was an unnatural conduct of Manikchand PW I, which cannot be believed. His brother, mother and Bhabhi were killed. So, naturally he would say to his father immediately on his arrival at the house that such and such thin& had happened and that, Attarsingh had murdered the three members in the family. But, strange enough that he did not talk to his father till 4-5 PM and kept silent, and thereafter in the evening to spoke to his father. This shows that the entire story is a concocted story. The correct fact has not been brought before the Court, and at every stage, the prosecution has tried to hide something and created a false story It cannot be imagined that the son when meets his father ;n the morning at about 8 O clock, would not tell him that his mother, brother and Bhabhi had been murdered by Attarsingh. So, this shows that Manikchand PW 1 and his father Moonshiram PW 7 both are unreliable witnesses. 47. Another aspect which shows that Manikchand is a tutored and made out witness is the non-recovery of the blood-stained clothes of Manikchand and his younger brother Shyamsunder. Manikchand, in this cross-examination, has said that while he was sleeping with his brother Roopsingh, he was wearing an underwear only and that he was not wearing any banyan (vest). He stated that there was blood on his underwear. But, that underwear was not seized by the police. Nathilal PW 4 in his cross-examination, has said that when Manikchand had come to him in the night, his clothes were smeared with blood, and that, the younger brother of Manikchand also had accompanied Manikchand whose clothes were also smeared with blood. Nathilal has stated that he then gave clothes to Manikchand and his brother, of his children, to wear. Manikchand has not stated that bis blood-stained underwear and that of his younger brother were taken away by Nathilal PW 4 when they were supplied with new clothes. Believing for a moment that Nathilal had given clothes to Manikchand and his brother and kept the blood-stained clothes with him, then, those blood-stained clothes of Manikchand and his brother, Shyamsunder, should have been seized by the police. Believing for a moment that Nathilal had given clothes to Manikchand and his brother and kept the blood-stained clothes with him, then, those blood-stained clothes of Manikchand and his brother, Shyamsunder, should have been seized by the police. Nathilal PW 4 has not said that he had produced those blood-stained clothes before the police These blood-stained clothes were a very important piece of evidence, which could have proved and corroborated the presence of Manikchand in the chhappar at the time of the alleged occurrence. Manikchand was sleeping with his brother Roopsingh; and his younger brother was sleeping with his mother, Mst. Ramdei. When Roopsingh and Mst. Ramdei were murdered, it was natural that blood must have been on the bodies of these two children, and that was why Manikchand stated so. It was the duty of the investigating officer to have seized those blood-stained clothes of Manikchand and his younger brother. Seizure of those blood-stained clothes would have corroborated the statement of Manikchand that he was present at the time of infliction of blow or that he had witnessed the actual murder. Therefore, non-seizure of the blood-stained clothes of Manikchand and his younger brother creates a great lacuna in the prosecution case which effects much on the correctness of the story. This fact also raises great suspicion in the truthfulness of the prosecution story. Ducting the course of arguments the learned Public Prosecutor was asked to explain the fact as to why the investigating officer did not seize the blood-stained clothes of Manikchand and his younger brother because they were a very important piece of evidence, but, no reply was given by the learned Public Prosecutor to this query. He could not satisfy us on this point. 48. Omprakash PW 11, the investigating officer was asked in his cross-examination about blood on the clothes of Manikchand to which he replied that he did not seize his clothes. He did not see any blood on the clothes of Manikchand. This is a very strange way of investigation; An important piece of evidence would not be collected by the investigating officer in a triple murder case, can hardly be believed. Was the investigating officer so negligent in the investigation of this case ? 49. According to the prosecution case, accused Attarsingh after inflicting blows to Roopsingh and Mst. Ramdei, also had fired a gun. 50. Was the investigating officer so negligent in the investigation of this case ? 49. According to the prosecution case, accused Attarsingh after inflicting blows to Roopsingh and Mst. Ramdei, also had fired a gun. 50. Manikchand PW 1 has stated that after inflicting blows, while Attarsingh accused was going back, he also opened fire with a gun. 51. Omprakash PW 11, in his examination-in-chief, has stated that when he inspected the site, he recovered one empty cartridge from the spot vide memo, Ex. P. 8. He also recovered 66 pellets which were lying near the dead body of Roopsingh, vide memo Ex. P. 9. He also seized two outs vide memo Ex. PH. The investigating officer did not ask Manikchand as to from where the firing was done by Attarsingh accused. When the investigating officer was told by Manikchand that a gun was also fired by the accused, he should have inquired from Manikchand as to from which place, the said firring was done. He should have marked it in the site plan the place of firing. Then when a gun was fired in the Chhappar it must have created some sights of burning in the chhappar. There must have been some sign on the walls of the hut. The roof of the hut was made of grass. If a firing was made through the grass-roof, there mud have been some burning-sign in the grass of the roof. The investigating officer in this case did not see any mark or sign of firing, and that was why he did not mention about it in the site-plan, Ex, P. 4. Apart from this, the investigating officer also found 66 pellets near the dead body of Roopsingh. In his cross examination, the investigating officer has said that they were lying on the gudri and not inside it. He then has given his opinion that the accused might have opened the cartridge and pellets therefrom might have fallen on the gudri. This is only an opinion explanation. given by the investigating officer regarding the presence of 66 pellets on the gudri, which cannot be accepted. If the accused had a gun with him and also extra cartridges, why after firing one cartridge, would he open the live cartridges and get pellets spread on the gudri ? This is only an opinion explanation. given by the investigating officer regarding the presence of 66 pellets on the gudri, which cannot be accepted. If the accused had a gun with him and also extra cartridges, why after firing one cartridge, would he open the live cartridges and get pellets spread on the gudri ? Where was the necessity for the accused to have opened the cartridge and thereby left evidence behind him of the crime committed by him ? This all appears to be a story concocted by the investigating officer. A person who had came to commit murder with an axe as well as a gun the would he not use the gun for murder purpose? When the assailant had fired his gun he must have fired at Roopsingh, Mst. Ramdei or Mst. Sohnidevi. Certainly, he would not commit mistake by simply opening fire in the air in order to attract other persons of the locality to come and catch him. The assailant came in the night and murdered three persons with a deadly weapon. This shows that he wanted to murder them silently. Why would he accused fire a gun in the air to wake up the neighbours and attract them towards the hut. By doing so, there were chances of his being caught. Therefore, we do not believe the story of gun firing as alleged by the prosecution, which is also a concocted one, and on this aspect, Manikchand PW 1 again is an unreliable witness. 52. Then, there is a great contradiction and infirmity in the statement of the prosecution witnesses, regarding the arrest of accused Attarsingh. 53. Omprakash PW 11, the investigating officer has stated that he arrested accused Attarsingh on 21st Aug., 83 at 9 AM, from his house. At the time of his arrest, witnesses. Gulab and Sarman were present. The arrest-memo, according to him, is Ex. P. 16, which has been proved by him and which bears his signature at mark, C to D. This witness has contradicted his own statement in his cross-examination where he has stated that he did not go to arrest the accused, and the Additional Superintendent of Police and others had gone to arrest Attars ngh accused. He has also stated that Attarsingh was arrested after he was brought to police station from the spot. He has also stated that Attarsingh was arrested after he was brought to police station from the spot. After completing investigation at the spot, Attarsingh was arrested and then his arrest-memo was prepared. He has further stated that the arrest-memo, Ex. P. 16 was not prepared at the house from where the accused was arrested, but, it was prepared at the spot. The accused, according to Omprakash, PW 11, the SHO, was brought to the spot before sun-rise. All this fact has not been mentioned in the arrest-memo of the accused, but, according to Omprakash, this fact was mentioned in the case-diary. No diary, however, has been shown. So, the statement of Omprakash itself proves that he is an unreliable witness. He gave one statement and then contradicted the same in his cross-examination. It now becomes doubtful in his statement as to when Attarsingh accused was arrested and from which place. Once Omprakash PW 11 says that the accused was arrested from his house at 9 AM, and before his arrest, he was brought to the spot, and that after his arrest, his arrest-memo was prepared at the spot. He also says that from the spot, most probably, he was brought back to police station where he was arrested. Once the SHO says that he arrested the accused and prepared the arrest-memo, and the next time, he says that the Additional S.P. arrested the accused. So, we cannot judge as to which statement of the investigating officer is correct. 54. PW 3 Gulab, motbir of the arrest of the accused, has stated that Attarsingh was arrested in his presence, and that he had signed the arrest memo, Ex. P 16. In his cross-examination, this witness has replied that the police and gone to the house of the accused to arrest him in the morning at 4-5'O clock. This witness had also accompanied the police. The police arrested accused there and then came back to Jhopri (place of occurrence) at 8-9 AM. He has stated that it is incorrect to say that the police bad gone to arrest the accused at about 9 AM. Gulab has further stated in his cross-examination that it is correct that the police had brought the accused Attarsingh at about 4 AM. Thus, this witness has given a different version than that of Omprakash PW 11, the investigating officer. 55. Gulab has further stated in his cross-examination that it is correct that the police had brought the accused Attarsingh at about 4 AM. Thus, this witness has given a different version than that of Omprakash PW 11, the investigating officer. 55. Manikchand PW 11 in the cross-examination has said that the police had brought accused Attarsingh after his arrest at about 2-2.30 PM, and he was not arrested in the night. Thus, Manikchand has again a different statement, So, it is not clear as to when the accused was arrested, who arrested him, and where the arrest-memo. Ex.P. 16 was prepared. If the accused was arrested by the Addl. S.P. and the investigating officer was not present there at the time the prosecution ought to have proved like that, and the Addl. S.P. should have been examined. But, the prosecution did not examine the Addl. S.P. We have looked into the arrest-memo Ex. P 16. which is signed by the SHO. Omprakash, the investigating officer, PW11. This shows that Omprakash had arrested the accused. Had it been a fact that the accused was arrested by the Addl. S.P., the arrest-memo should have been signed by him. Therefore, this also creates doubt in the correctness of the fact about the arrest of the accused There is no doubt that Attarsingh was arrested but, when and by whom he was Crested is a matter which should have been put before the court by the prosecution on in a correct way. Why is there the difference on such a material point? So, this also creates suspicion in the story of the prosecution. 56. Omprakash PW 11 has stated that while in custody, Attarsingh accused gave information for recovery of an axe which is Ex. P. 26. On the basis of this information and at the instance of the accused, the axe was recovered vide recovery memo. Ex. P. 17; and Ex. P 18 is the site-plan of the place of the recovery of the axe. Gulab PW 3 was motbir at the time of the recovery of the axe. According to the investigating officer, the information Ex. P. 26 was given to him by the accused on 28th Aug , 83 and on that very date, the axe was recovered. Attarsingh was arrested on 21st Aug., 83. 57. Gulab PW 3 was motbir at the time of the recovery of the axe. According to the investigating officer, the information Ex. P. 26 was given to him by the accused on 28th Aug , 83 and on that very date, the axe was recovered. Attarsingh was arrested on 21st Aug., 83. 57. PW 3 Gulab has stated in his examination-in-chief that accused Attarsingh was arrested in his presence, and that, two days after his arrest accused Attarsingh got recovered the axe from a Jhari (bush) near a nullah (drain). The recovery-memo is Ex. P. 17, which bears his signature from A to B. Thus according to Gulab, Attarsingh was arrested on 21st Aug 83 and on 23rd Aug. 83 he gave information for recovery of an axe, which was recovered on that very date by the police. Thus, this witness has contradicted and falsified the story of Omprakash, the investigating officer. PW 11, who stated that the axe was recovered on 28th Aug., 83. Thus, this difference also creates suspicion in the recovery of axe. 58. Mr. Gupta, the learned amicus curiae has argued that the entire story has been concocted by the police. The report, Ex. P.1 was prepared by them the FIR was prepared later on; and they did not send the FIR to the higher authorities immediately as required under the police rules, which creates doubt in the correctness of the prosecution case. In this regard, we have perused the statement of Omprakash PW 11 and Jaganprasad, DW 1, who was Reader to Superintendent of Police, Bharatpur. 59. Omprakash PW 11, in his cross-examination has said that it is incorrect to say that he sent the case diary to SP Office on 12th Sept., 83 which was received in the office and entered in the Register at No. 12207. He has also said that it i incorrect to say that he could not find out the actual culprits in this case and as the police was angry with the accused, Narain alias Attarsingh. challan was submitted against him. This witness has also denied that the FIR was prepared on 22nd Aug., 83. So according to Omprakash PW 11, the case being of a special report, the Superintendent of Police was informed immediately, and the case-diary was sent to him immediately. But, this witness has been contradicted and falsified by Jaganprasad DW 1. Reader to SP, Bharatpur. This witness has also denied that the FIR was prepared on 22nd Aug., 83. So according to Omprakash PW 11, the case being of a special report, the Superintendent of Police was informed immediately, and the case-diary was sent to him immediately. But, this witness has been contradicted and falsified by Jaganprasad DW 1. Reader to SP, Bharatpur. 60. Jaganprasad DW 1 has stated that the case-diaries of special-report cases are sent to SP Office, which are entered in the "Receipt Register" there and then they are entered in the Digest-Register". He had brought the Digest Register, after seeing in the Register, he stated that the case-diary in FIR on 440/83 dated 22nd Aug.. 83, was received at the SP Office on 12th Sept 83. The diaries of 27th & 28th Aug., 83 were also received on 12th Sept., 1983 and were entered in the Digest Register. A copy of the Digest-Register is Ex D 4/A. In his cross-examination, this witness replied that the Digest-Register is in his handwriting. We see nothing in his cross-examination to term him as an unreliable fitness. 61. So from the record of the SP Office, the statement of Omprakash PW 11, the investigating officer, is falsified. He has incorrectly stated that he had sent the case-diary in this case immediately, to SP Office. He has denied to have sent the case diary on 12th Sept., 83, while from the statement of Jaganprasad. DW 1 it is established that the diary was sent and received at the SP Office on 12th Sept., 83. Why did Omprakash give this false statement? Why not the correct position was brought to the notice of the Court This strengthens the argument of Mr. Gupta, the learned amicus curiae that the entire case has been concocted by the police. As they could not find out the actual culprit, and as they inimical to the accused in this case. Attarsingh accused has been falsely entangled in this case and challaned. This argument has great substance. The statement of Omprakash PW 11 creates suspicion in the correctness of the prosecution story. 62. Mr. Gupta, the learned amicus curiae argued that three persons had been murdered in this case, so, there must have been serious motive behind such a heinous crime, and so, it was for the prosecution to prove the motive of the accused in committing the three murders. 62. Mr. Gupta, the learned amicus curiae argued that three persons had been murdered in this case, so, there must have been serious motive behind such a heinous crime, and so, it was for the prosecution to prove the motive of the accused in committing the three murders. Moonshiram PW 7 has stated that one year prior to this occurrence, a quarrel had taken place in between Attarsingh and Kanjars of Azad Nagar in front of his hut, in which, gun was fired from both the sides. After that, this witness stated. Attarsingh left the place and started living at Nayee Mandi. Attarsingh had asked him to give evidence for him in that matter, but, he had refused. This witness has also stated that Attarsingh had brought a customer for purchasing his plot of land. That man was ready to pay Rs. 25,000/-, but he (Munshiram) refused to sell it. Apart from this, there was no enmity or quarrel in-between him and Attarsingh accused, but, at that time Attarsingh had told him that he would see him. In his cross-examination, Moonshiram stated that it was correct to suggest that on account of not giving evidence, as stated above, there was a dispute in between him and accused Attarsingh. Attarsingh had no dispute with his son. wife and his sons wife. Thus, while referring to the statement of Moonshiram, it was argued by the learmd amicus curiae that except this, there was no cause which forced Attarsingh to take such an action. There is nothing on the record to show that Attarsingh had any enmity with Roopsingh, Mst. Ramdei and Mst. Sohnidevi. Hence, according to the learned amicus curiae, the prosecution has failed to prove any motive of the accused behind the murders in this case. 63. In reply to the above argument, the learned Public Prosecutor argued that it is not necessary for the prosecution to show that the accused had any enmity/motive for committing the crime According to him, if it is established by evidence that the accused has committed the offence, then, it is immaterial whether motive has been established or not. According to the learned Public Prosecutor, the prosecution has proved its case, and it has been established that accused Attar Singh had inflicted blows by axe to Roopsingh & Mst. According to the learned Public Prosecutor, the prosecution has proved its case, and it has been established that accused Attar Singh had inflicted blows by axe to Roopsingh & Mst. Ramdei, resulting in their death, and so, he is responsible for the murders in this case irrespective of any motive. 64. We have considered the rival contentions of both the learned counsel on this aspect. Where there is clear proof of motive behind the crime, it leads additional support to the finding of the court to hold that the accused is guilty, but, absence of clear proof of motive, does not lead to the contrary conclusion, as has been held by their Lordships of the Supreme Court in State of Haryana v. Shersingh and others ( AIR 1981 SC 1021 ) . We kept this principle in our mind. The fact that the prosecution in this case has failed to prove motive of the accused, it is for the court to be cautious and careful to see that the other evidence proves the guilt of the accused. From the record, we find that there is no other proof about the motive of the accused behind the crime. The prosecution has failed to establish any motive If it is presumed that there was some enmity, then, it was in between Moonshiram and accused Attarsingh. Accused Attarsingh might have requested Moonshiram to give evidence in his matter and Moonshiram might have refused to do so. So, Attarsingh was angry with Moonshiram only. There was no enmity in-between Moonshiram and Roopsingh, Mst. Ramdei and Mst. Sohnidevi. There is not a single iota of evidence to the effect that there was ever any quarrel in-between the deceased persons and accused Attarsingh. So, from the entire record of the case, we are of the opinion that no motive behind such a heinous crime in this case has been established by the prosecution. Even from the evidence, no such presumption can be drawn. No doubt, motive is not necessary to be established, and from the evidence of the witnesses, it has been established that the accused has committed the offence, then certainly the accused person can be punished. But, in the present case, there is total absence of any motive. There is no proof to the effect that accused Attarsingh had any motive to commit murder of the three persons. But, in the present case, there is total absence of any motive. There is no proof to the effect that accused Attarsingh had any motive to commit murder of the three persons. Even, from the evidence, as we have discussed above, it has not been established that accused Attarsingh has committed the murders in this case. Therefore, the argument of the learned amicus curiae, in this regard, has great force, and the argument of the learned Public Prosecutor that Manikchand PW 1 had no motive to falsely implicate accused Attarsingh in this case, is no argument. We have discussed the evidence of Manikchand PW 1 above, in detail, and we are of the opinion that he is a most unreliable and untrustworthy witness. He, at all, cannot be treated to be a witness of sterling worth. In such circumstances, the argument of the learned Public Prosecutor, has no force. 65. It was then argued by Mr. Gupta, the learned amicus curiae that according to the statement of Omprakash PW 11 the investigating officer, the articles which were seized by him during the investigation, were sealed and kept in the Malkhana, and later on, they were sent to forensic science laboratory, for examination. But, the Learned amicus curiae argued, there is no evidence to prove that the sealed packets were kept in tact in the Malkhana in the same condition in which they were sealed at the time of their seizure. He argued that it was the duty of the prosecution to prove that after sealing the articles at the spot, they were kept in the Malkhana in sealed condition and during that period, the seals on the articles, were in tact and they were not tampered with, who further added that it was the duty of the prosecution to prove that without tampering with the seals on the articles, they were sent to forensic science laboratory, for examination. In support of his aforesaid argument, the learned amicus curiae has referred to the case of Rajaram v. The State of Rajasthan (1985 RCC 342) (Justice G. K. Sharma was one of the members of the Bench), wherein, it was observed as under:- xxxxxx xxxxxxx In the case of Rajaram (supra), the case of State of Rajasthan v. Daulatram ( AIR 1980 SC 1314 ) was relied upon, wherein, it has been held by their Lordships of the Supreme Court as under XXXXXXXXX In the case of Rajaram (supra), the case of State v. Motia and others (1953 (3) ILR Raj. 655) , a division bench decision of our own High Court, was also relied upon, wherein it was observed as under : XXXXXXXXX The statement of Omprakash PW 11 was brought to our notice, wherein, he has stated that the articles which were seized on 21st Aug., 83 from the site (place of occurrence), were sealed and kept in the Malkhana in sealed condition. All those articles, according to him, were sent to forensic science laboratory, through Shyamsingh Constable, for examination. Referring to the above statement, it was argued that only those articles which were recovered on 21st Aug. 83, were kept in the Malkhana and only they were sent for chemical examination. Omprakash has not stated that the axe which was recovered on 28th Aug., 83, was kept in sealed condition in the Malkhana and was sent to forensic science laboratory, with Shyamsingh Constable. We find that the investigating officer has not stated in clear words that the axe which was recovered on 28th Aug., 83. was sealed and kept in the Malkhana in the same condition. Shyamsingh PW 9 has not stated that he had taken the packet of axe in sealed condition, to forensic science laboratory. He has only stated that on 6th Nov., 83. he had taken some articles of Case No. 440/83, from Police Kotwali, Bharatpur, to Forensic Science Laboratory, Jaipur. According to him, there were 10 packets and all of them were in sealed condition. This statement of Shyamsingh PW 9, is not sufficient. The prosecution ought to have proved that the sealed packets were kept in the Malkhana and that the seals on the packets were in intact condition, and they were not tampered with in the Malkhana. According to him, there were 10 packets and all of them were in sealed condition. This statement of Shyamsingh PW 9, is not sufficient. The prosecution ought to have proved that the sealed packets were kept in the Malkhana and that the seals on the packets were in intact condition, and they were not tampered with in the Malkhana. The prosecution has also failed to prove that the sealed packets were sent to Forensic Science Laboratory, without being tampered with. This could be proved by examining the in-charge of the Malkhana. Shyamsingh PW 9 was not the in-charge of the Malkhana. He had simply carried some sealed packets to forensic science laboratory, and there he had handed over those packets in the same condition in which, they were given to him. This does not prove that the seals on those packets, were not tampered with, or that they remained intact during the period they were in the Malkhana. This fact could be proved only by the in-charge of the Malkhana. But, as the incharge of Malkhana has not been examined, there is no proof to the effect that the seals on the packets of the recovered articles till they were kept in the Malkhana remained intact, and they were not tampered with. 66. There is one aspect to be looked into that the investigating officer Omprakash PW 11 has stated that on 28th Aug., 83, the accused gave information Ex. P. 26 for recovery of the axe, and on the basis of this information, and at the instance of the accused, the axe was recovered from a Jhari (bush) near a Nullah (drain), and the same was sealed at the spot. Gulab PW 3 was the motbir of this recovery, who has stated that after 2 days of the arrest of the accused, he gave information for recovery of the axe, which was so recovered at his instance. According to him, the date of recovery was 23rd Aug.,83, because the accused was arrested on 21st Aug., 83 Gulab has further stated that he was standing on the Choraha (junction) from where he was taken away by the police, and the axe was recovered. The police had made the proceedings of recovery in writing, and the complete proceedings were made at the spot. The police had made the proceedings of recovery in writing, and the complete proceedings were made at the spot. He has stated that it was correct that the seal on the packet of axe, was affixed at the Police Kotwali. He has specifically stated that it was incorrect to suggest that the articles were not sealed at the spot. Thus, this witness has given a contradictory statement. From his statement, it is not clear that the axe was recovered at the instance of the accused, as stated/alleged by the prosecution. It becomes doubtful whether the axe was sealed, and whether the sealed packet of the axe was kept in the Malkhana in intact condition without being tampered with during the period it was kept in the Malkhana. So, there is no proof to this effect that the seals on the packets remained in-tact during the period they were kept in the Malkhana and not proving this aspect leads to suspicion about the recovery of the articles which were actually recovered. 67. During the arguments, the learned amicus curiae brought to our notice a fact that during investigation, the police had recovered a wooden box from a place which was at a distance of 1 furlong from the place of occurrence. According to him, in that box, there were some photographs, letters and other documents, which had a bearing on this case, but the prosecution intentionally did not produce that box and its contents before the court, and connoted the present story. With regard to this contention, an application u/s 311, Cr.P.C. was filed on behalf of accused Narain alias Attarsingh, and a request was made that the said box and its contents be taken on record and the investigating officer Omprakash PW 11. Gulab PW 3 and Moonshiram PW 7 be recalled, and that, the accused be accorded opportunity to cross-examine them on the recovery of that box. A reply was filed on behalf of the prosecution to this application. In the said reply, it has not been denied that the box was of recovered. Gulab PW 3 and Moonshiram PW 7 be recalled, and that, the accused be accorded opportunity to cross-examine them on the recovery of that box. A reply was filed on behalf of the prosecution to this application. In the said reply, it has not been denied that the box was of recovered. It was contended in the reply that a copy of the recovery-memo as regards the box was with the accused, so he could have asked questions in cross-examination of the witnesses, but, at the relevant time, he did not cross-examine on this point, and that, it was within the right of the prosecution to examine or not to examine particular witness. It has also been mentioned in the said reply that after the recovery of the box, they did not find any relevancy of it with the commission of offence of murders in this case, and so, they did not consider it necessary to produce the box in the court and examine witnesses concerned with the recovery of the box. The trial court, after hearing both the parties, dismissed that application on 22nd Mar., 85. It was argued by the learned amicus curiae that the learned Sessions Judge has committed error in rejecting the application submitted by the accused u/s 311, Cr P.C. 68. We have considered the arguments of both the learned counsel on the above aspect. The accused along with his application, submitted a copy of the recovery memo with regard to the box. When the prosecution supplied a copy of the recovery-memo to the accused as regards the box, it shows that the box was recovered. According to the accused, that box belonged to Moonshiram PW 7, which contained certain photographs, letter and other documents which could have corroborated the contention of the accused about the bad character of Mst. Ramdei and Mst. Sohnidevi deceased. After considering the arguments, we are of the opinion that the learned Sessions Judge committed error in not taking into consideration the aspect which was brought to his notice by the accused person. He ought to have gone through those letters, photographs and other documents, and should have decided the application after considering them. What we feel is that the learned Sessions Judge, in a casual manner, rejected the application submitted by the accused u/s 311. He ought to have gone through those letters, photographs and other documents, and should have decided the application after considering them. What we feel is that the learned Sessions Judge, in a casual manner, rejected the application submitted by the accused u/s 311. Cr.P.C. The accused did not file any revision petition against that order, and we do not want to call those articles and scrutinise them at this stage. Simply we remark that the learned Sessions Judge did not approach correctly on the application filed by the accused u/s 311, Cr.P.C., and that application was not rightly rejected. 69. In view of our above discussion, we are of the opinion that Manikchand PW 1 who is the star and solitary eye-witness in this case, is a most unreliable and untruthful witness, and not at all, is of sterling worth. Even, we have no hes nation is saying that he is not a witness to be relied upon partly even. He was not at all present at the time of the alleged occurrence and totally he is a made out and concocted witness. The infirmities and inconsistencies in his statement as pointed out by us above, prove that he being such an unreliable and untruthful witness, conviction of the accused on his statement, cannot be sustained. 70. In Sudhir and another v. State of Madhya Pradesh ( AIR 1985 SC 515 ) their Lordships of the Supreme Court, while discussing the statement of injured witness Kamal, observed as under: "In view of these infirmities in the evidence of Kamal whose testimony alone can sustain the conviction of the appellant, the appeal has to be allowed and the order of conviction and the sentence in regard to both the appeals has to be set aside." In view of the above discussions the conviction of the accused-appellant in this case u/s 302, IPC, based on the solitary testimony of Manikchand PW 1, as held by the learned Sessions Judge, cannot be sustained, and the appeal of the appellant deserves to be accepted. 71. In the result, the Jail-Appeal filed by the accused-appellant Narain alias Attarsingh, is allowed. The conviction and the sentence passed against him by the learned Sessions Judge u/s 302, IPC, are set aside. The accused-appellant is not found guilty of offence under this section; and he is acquitted of the offence u/s 302, IPC. He is in jail. 71. In the result, the Jail-Appeal filed by the accused-appellant Narain alias Attarsingh, is allowed. The conviction and the sentence passed against him by the learned Sessions Judge u/s 302, IPC, are set aside. The accused-appellant is not found guilty of offence under this section; and he is acquitted of the offence u/s 302, IPC. He is in jail. He be released forthwith, if not required in any other case. 72. In these circumstances the reference made by the learned Sessions Judge u/s 366(1), Crl. P. C., stands rejected.Appeal allowed. *******