JUDGMENT 1. 1. In case No. 119/81 State v. Ram and Ors . the learned Sessions Judge, Bharatpur found accused appellant Pheli Ram guilty under Sections 148, 307/149, & 343/302. He also found accused-appellants Hari Singh, Moolia and Mohanlal guilty under Sections 141, 307/149 and 342 IPC. Accused-appellant Pheli Ram has been sentenced to life imprisonment under Section 302. He has also been sentenced for imprisonment under Sections 148, 342 IPC. Accused-appellants Moolia, Hari Singh and Mohanlal are sentenced for 7 years rigorous imprisonment under Sections 307/149 and they are also sentenced for imprisonment under Section 148 and 342 IPC. Aggrieved by this judgment of the learned Sessions Judge, Bharatpur dated 13 9-1983 accused-appellant Pheli Ram filed an appeal in this Court which has been registered at serial number 445/83 and other accused-Harisingh, Moolia and Mohanlal also filed an appeal before this Court which has been registered at serial number 426/83. Both the appeals are against one judgment and appeal No. 445/83 was D.B. matter so appeal No. 426/83 was also listed for hearing before the Division Bench on 29-11-83. 2. Arguments were heard on both the appeals. As stated earlier that both the appeals are against one judgment of the Sessions Judge apart from this a common question of law and fact is involved in both the two appeals so the appeals are being disposed of by a common judgment. 3. Briefly stated the facts of the case are that in the intervening night of 16th and 17th March, 1981 at 3.15 hours a telephonic message was received by Shri Gainda Singh, the then Station House Office, Police Station, Kumher to this effect that a dacoity is being committed in village Helak in a house which falls in the jurisdiction of Police Station, Kumher. On receipt of this information Shri Gainda Singh along with other police employee reached village Helak where he found that no dacoity had been committed there but is committed in a nearby village Gandhi Nagar. This information was given to Gainda Singh by the villagers at Helak. On receiving this information the Police party reached village Gandhi Nagar. There they found some senior police officers from Bharatpur and Police Station Sewar. It was also found that a lot of persons were standing infront of the house of deceased Mangal and dead body of a person was also lying there. On receiving this information the Police party reached village Gandhi Nagar. There they found some senior police officers from Bharatpur and Police Station Sewar. It was also found that a lot of persons were standing infront of the house of deceased Mangal and dead body of a person was also lying there. A number of injuries were found on the person of the deceased. It has been further alleged that at the time when Gainda Singh reached Gandhinagar, a written report was submitted to him by the accused-appellant Pheli Ram with following facts. In the night intervening between 16th and 17th March, 1981 at about 130 hours, when they were discussing the pain of delivery of the wife of Vinay Singh son of the accused-appellant Pheli Ram at the time 10 to 12 miscreants armed with gun, 'Barchhi' 'Farsa' 'lathi' etc. came into his hoxise through the gate on Eastern side of the house in the rear. On seeing the dacoits Moolia, younger brother of the accused-appellant Pheli Ram began to make a hue and cry. On this the dacoits began to fire. Seeing the danger of his life and property Pheli Ram took out hsi. 12 bore gun and fired gun shots taking the shelter of a wall. On this rag miscreants ran away firing the gun shots. After some time when there was no indication of gun fires. Pheli Ram and his companions went ahead. Then they found one dead body outside the gate of their house, which was of one of the dacoits. They inflicted lathi blows on that dead-body. In the mean time lot of the persons from the village collected there. Pheli Ram and others followed the dacoits also but they did not catch any of them. Then they went to the Railway Station Helak to communicate the message to Police Stations Kherli, Nad-bai and Bharatpur. 4. On receipt of this report from the accused-appellant Pheli Ram Shri Gainda Singh sent the same to the Police Station Kumher for registering the case. On this case No. 50/81 under Section 399, 402, and 307 IPC was registered at the Police Station, Kumher and FIR was checked out and investigation started. Post mortem was done on 17th March, 1981. The statement of the witnesses were recorded under Section 161 Cr.PC. On this case No. 50/81 under Section 399, 402, and 307 IPC was registered at the Police Station, Kumher and FIR was checked out and investigation started. Post mortem was done on 17th March, 1981. The statement of the witnesses were recorded under Section 161 Cr.PC. After observing the formalties regarding the cremation of the dead body, the dead body had been put on the funeral pile and the same was to be put to fire, at that time Smt. Jeewani w/o deceased, Raghuvir son of the deceased, Biri Singh and other persons reached there and the dead body was handed over to them for cremation. The deceased was identified by Parma and after this information was given to the relatives of the deceased by the Police. The police waited for a long time and when police party found that the relatives of the deceased did not arrvive to take the dead body and the same was put on the funeral pile, and at that time wife, son of the deceased arrived. 5. Shri Gainda Singh had completed the initial investigations then the circumstances took a new turn. PW 2 Mandoo, resident of village Simpani filed a complaint in the Court of Additional Munsif and Judicial Magistrate No. 1 Bharatpur on 19 March, 1981. The complaint was forwarded to the Police Station under Section 156(3) of the Cr.PC by the Judicial Magistrate. On receiving this complaint at Police Station, Kumher on 24th March, 81 investigation was again started, after registering the case under Section 302 IPC. The case was registered at serial number 58/81 and FIR was chalked out. PW 2 Handoo mentioned the following facts in the complaint Ex. D 1 : That on 15th March, 1981 at about 5 to 6 P.M he, deceased Raghunath and PW 4 Parma left Simpani to village Vishada in search of boys for the engagements of Handoo's daughter. They stayed in the night in village Vishada in the house of Narain Meena. Next day i.e. on 16th March, 1981, all of them along with Narain Meena reached in village Nagla Bhatawali at the residence of Kashi for engagement of Handoo's daughter with the sons of Kashi Meena. After engagement, they reached village Rajpur at the house of PW 4 Parma on the same date. They took tea at the residence of Parma. Next day i.e. on 16th March, 1981, all of them along with Narain Meena reached in village Nagla Bhatawali at the residence of Kashi for engagement of Handoo's daughter with the sons of Kashi Meena. After engagement, they reached village Rajpur at the house of PW 4 Parma on the same date. They took tea at the residence of Parma. PW 10 Smt. Dulari wife of Parma threw the pink colour on Handoo and deceased Ragunath on the occasion of Holi festival as Parma had engaged his daughter with the son of deceased Raghunath. It is further alleged that they reached near village Gandhi Nagar at about 6 p.m. on the same day after leaving the house of Parma. On the way accused Harisingh asked them for smoking 'Hukka'. Amar Singh and and Gheesa also reached there at the time. Hari Singh asked him that the accused Mangal was calling the deceased Ragunath. Mangal blamed the deceased Ragunath for the theft of his mare and Ragunath deceased refused this allegation. On this the accused persons started beating the deceased and broke his feet and legs. When Handoo asked him not to beat the deceased then accused Hari Singh gave him the threat that he will be shot dead. It is further alleged that they took Handoo in the Kotha room of Mangal and confined him there. The accused Hari Singh took Handoo out from the Kotha at about 12 in the night and took him in that Kotha where Ragunath was lying. It was also stated by Handoo that the accused Pheli Ram gave a gun shot to Ragunath in his presence and the accused persons took him to the village Vishada in the same night where they kept him in the Kotha of Amar Chand Meena. It was further alleged that on 18th March, 1981 at about 4 in the morning he was released after he took oath that he would not disclose the incident to anybody else and he reached at about 6 to 7 to his village Simpani where he came to know that funeral ceremony of the deceased Ragunath had taken place. He narrated the whole incident to the wife of deceased as well as to other villagers. He narrated the whole incident to the wife of deceased as well as to other villagers. It was also alleged by him that he went to the police station Kumher for lodging the report along with other villagers but the SHO Police Station Kumher did not write the report. Hence he lodged the complaint in the court of Judicial Magistrate on 19th March, 1981. 6. After completing the investigation in case No. 58/81. The police submitted a challan against the accused persons in the Court of Additional Munsif and Judicial Magistrate No. 1, Bharatpur who committed the accused to the Court of Sessions for trial where the charges were framed against the accused persons for the offences under Sections 148, 302, 302/149, 201, 120B and 342 IPC. The accused appellants denied the charges and claimed to be tried. 7. The prosecution produced as many as 25 witnesses along with certain documents. The accused persons were examined under Section 313 CPC and produced 3 defence witnesses. After hearing both the parties the learned Judge convicted and sentenced the accused appellants as aforesaid, The accused Man Singh, Tek Chand and Amar Chand were acquitted. Hence this appeal. 8. Heard the learned counsel for the parties. 9. The learned counsel for the appellant based his arguments on the grounds taken in the memo of appeal and he referred the followings cases: AIR 1976 SC 560 , AIR 1980 SC 102 , AIR 1981 SC 1578 , AIR 1948 PC 114 , AIR 1947 PC 15 , 1953 RLW 231, AIR 1936 PC 253 , AIR 1964 SC 358 and AIR 1957 SC 637 . 10. The learned Public Prosecutor submitted that the accused appellants are rightly convicted by the learned Sessions Judge. The statement of Handoo cannot be disbelieved. His statement is supported by the statement of other witnesses. Ex.P 23 cannot be held as inadmissible. 11. We have carefully considered the arguments advanced by the learned counsel and gone through the entire record of the case. 12. After going through the statement of the prosecution witnesses it could be said that only direct evidence available in this case is the testimony of PW 2 Handoo. The other evidence is Ex.P 23, the so called report given by accused-appellant Pheli Ram to Shri Genda Singh on 17th March, 1981 at the place of occurrence. 12. After going through the statement of the prosecution witnesses it could be said that only direct evidence available in this case is the testimony of PW 2 Handoo. The other evidence is Ex.P 23, the so called report given by accused-appellant Pheli Ram to Shri Genda Singh on 17th March, 1981 at the place of occurrence. The 3rd set of evidence produced by the prosecution is regarding the connection of the deceased Ragunath with the deceased Mangal and accused Harisingh. The 4th set of evidence produced by the prosecution in this case is to corroborate the statement of PW 2 Handoo. The 5th set of evidence is the statement of PW 8 Dr. Maheshchandra who conducted the post mortem on the dead body of deceased Raghunath Ex.P 9. The 6th set of evidence is the statement of the Police Officer who have investigated the case. 13. PW 2 Handoo has narrated the same facts as are alleged in the complaint Ex.D 1, according to his statement given in court, PW 4 Parma accompanied the witness Handoo and the deceased to the places where the witnesses went in order to have the engagement of his daughters, ft has been stated by PW 2 that they stayed at night in village Washada at the residence of Narain, then next morning Handoo, Parma, Raghunath and Narain went to village Nagla Bhatawali at the residence of Kashi for engagemet of his daughter with the son of Kashi Meena. After engagement it is further stated that they went at the house of PW 4 Parma on the same day where they took took tea. PW 10 Smt. Dulari wife of Parma threw the pink colour on this witness and deceased Raghunath on the occasion of Holi festival, as Parma had engaged his daughter with the son of deceased Raghunath. It has been further deposed by PW 2 that at about 6.00 p.m. on the same day they reached village Gandhi Nagar, on the way accused Harisingh asked them for smoking 'Hukka'. Amarsingh and Gheesha also reached at that time, Harising asked that the accused Mangal (died during trial) was calling the deceased Raghunath. It was further deposed by PW 2 Handoo that Mangal blamed deceased Raghu Nath for the theft of his mare, Raghunath refused the same. Amarsingh and Gheesha also reached at that time, Harising asked that the accused Mangal (died during trial) was calling the deceased Raghunath. It was further deposed by PW 2 Handoo that Mangal blamed deceased Raghu Nath for the theft of his mare, Raghunath refused the same. On this accused persons started beating Raghunath and PW 2 was also given a threat by accused Harisingh saying that he will be shot dead. The witness further deposed that accused took the witness in Kotha (room) of Mangal and confined him here. The witness further deposed that accused Harisingh took him out from the Kotha at about 12 in the night and to him in that Kotha where Raghunath was lying. The witness further deposed that accused-appellant Pheli Ram gave a gun shot to Raghunath in his presence and the witness was taken to village Wishada on the same night where they kept him in the Kotha of Amar Chand Meena. On 18th March, 1981 at about 4.00 in the morning the witness was released after it took oath that he would not disclose it to any body and after his release the witness reached his village Simpania where he came to know that the funeral ceremony of the deceased had taken place. He narrated the whole incident to the wife of Raghunath deceased as well as to the other villagers and it was also stated by him that he went to Police Station, Kumher for lodging the report along with other villagers but the S.H.O. Police Station, Kumher did not writ report. Hence the complaint was filed in the Court. 14. From the statement of Handoo PW 2 following persons merge as the persons who could have supported the version of PW 2 Handoo. They are Parma, Narain resident of Washada, Kashi Ram resident of Nagla Bhatawali with whom engagement talks of Handoo's daughter was finalised then Smt. Dulari w/o Parma and the daughter-in-law of Parma who threw the pink colour on Handoo and Raghunath, then Kajodi resident of Gandhi Nagar who offered Hukka to witness and the deceased, then Birbal resident of Gandhi Nagar who also offered smoking of Hukka to the witness and the deceased where the witness and deceased talked and smoke Hukka. At that time when they were smoking Hukka, Gheesha and Amar Singh resident of Gandhi Nagar joined the smoking and then Hari Singh came. At that time when they were smoking Hukka, Gheesha and Amar Singh resident of Gandhi Nagar joined the smoking and then Hari Singh came. By these statements Birbal Ghashi and Amar Singh are also the important persons who could have supported the statement of PW 2 Handoo and lastly by Amarchand was also a person in the Kotha of whom, the witness was confined, Amar Chand was made an accused in this case. But he has been acquitted by the learned Sessions Judge. 15. Some of the above mentioned persons were produced by the prosecution to give strength to the statement of PW 2 Handoo but unfortunately PW 1 Gheesha PW 3 Amar Singh turned hostile and did not at all support the statement of PW 2 Handoo Narain Meena who accompanied the deceased and PW 2 Handoo has not been produced. Similarly Shri Kashi Ram resident of village Nagla Bhatawali with whose son engagement of the witness Handoo's daughter was settled has also not been produced. In the examination-in-chief PW 2 Handoo has deposed that Parma's daughter-in-law threw the pink colour on him and the deceased Raghunath but she also has not been produced. 16. As we have stated earlier that the only direct evidence available in this case is of PW 2 Handoo who claimed to be the eye witness of the occurrence, and case number 58/81 is registered on the basis of complaint filed by him after two days of the occurrence. It is thus clear that there is a delay in filing the complaint explanation of which is required in this case. More over the entire case of the prosecution hinges on the solitary testimony of PW 2 Handoo. Under these circumstances his statement is to be considered with care and caution and after careful scrutiny. We have to see as to whether the testimony of PW 2 is in itself sufficient to have the conviction of accused-appellants or requires corroboration or his testimony inspires confidence and whether his statement gets any support from the statement of the witnesses for the prosecution. 17. Now again we would like to examine the statement in the light of question posed above. 18. In this case pink colour was found on the cloth and shoe of the deceased. 17. Now again we would like to examine the statement in the light of question posed above. 18. In this case pink colour was found on the cloth and shoe of the deceased. The learned Sessions Judge also made this circumstance as the basis of his finding and the prosecution claimed it a very important circumstantial evidence. It has been alleged that this colour was thrown at the residence of Parma. But the question arises as to who threw this colour. In this regard PW 2 Handoo stated that daughter-in-law of Parma threw the colour on him and on the deceased Raghunath. PW.4 Parma stated that his wife threw colour on Raghunath and his daughter-in-law threw colour on Handoo. PW 10 Dulari says that she threw colour. It is thus clear that on this point there is a contradictory statement of the prosecution witnesses and PW 10 did not state clearly that on whom she threw the colour. We are therefore of the opinion that the theory of colour found on the shoe of the deceased do not inspire confidence and as such in cannot be believed. PW 2 Handoo disowned his previous statement contained in Ex. D-l the complaint Ex. D-2 the statement recorded under Section 161 Cr. P.C. dated 24-3-1981 and Ex. D-3 statement dated 19-4-1981. These contradictions are material in nature and as such cannot be ignored. PW 2 Handoo disowned his previous statement contained in Ex. D-l the complaint Ex. D-2 the statement recorded under Section 161 Cr. P.C. dated 24-3-1981 and Ex. D-3 statement dated 19-4-1981. These contradictions are material in nature and as such cannot be ignored. Some portion of such statement is reproduced below: " iz'u%& nsf[k,] vkius mij ;g fy[kk;k gS fd tc vki dksBjh esa cUn Fks rc 100 xt ls vkius cUnwd pyus dh vkokt lquh FkhA ;g vkius vius bLrxklk vkSj iqfyl dks c;ku ,Dth Mh0 2 o lh0vkbZ0Mh0 ds c;ku ,Dth0 Mh0 3 esa ugha fy[kok;kA mRrj%& tc eq>dks dksBjh esa ls ys tkdj j?kqukFk dks fn[kk;k tc og fgyMqy ugha jgk FkkA ml le; esjs lkeus j?kqukFk ij cUnwd QSyh us pykbZ Fkh eSa dy Hkwy x;k Fkk Hkwy ls eSaus 100 xt ls cUnwd pykus dh vkokt lquuk fy[kk fn;k FkkA cUnwd esjs lkeus gh j?kqukFk us nh Fkh og ml le; fgyMqy ugha jgk FkkA iz'u%& nsf[k;s tc lh0vkbZ0Mh0 esa vkidk c;ku gqvk rc ml c;ku esa vkius ;g ckr crykbZ Fkh fd dksBjh esa ls eq>s ys x;s vkSj j?kqukFk dh dksBjh es tgka og Fkk ys x;s vkSj dksBjh esa cUnwd rqEgkjs lkeus ekjh ;g ckr D;k iqfyl ds le{k fy[kkbZ FkhA mRrj%& ;g eSaus Fkkusnkj dks dgk t:j FkkA & ( ch ) iz'u%& nsf[k;s vkius vius iqfyl c;ku ,Dth0Mh03 ds Hkkx , ls ch esa ;g fy[kk;k FkkA fd chjcy ds edku ds lgkjs tSls pys rks ,dne ewY;k eksguyky] eksgu flag] eu flag] egjkt flag] cuS flag] QSyh] VsdpUn] vk x;s vkSj j?kqukFk dks pkjksa vksj ls idM+ fy;k rks eSaus dgk fd ;g D;k djrs gks rks gfj flag us j?kqukFk mldks idM+k vkSj dgk fd ys pyks lkys dks vkSj esjs ikl vkdj gfj flag us esjs tksj ls FkIiM+ ekjk vkSj dgk fd ph pIiM+ dh rks vPNk ugha vkSj eq>s idM+dj [khaprk gqvk eaxy dh cSBd ij ys vk;k vkSj vkt vkius ;g dgk fd ml le; eqyfteku dejs esa Fks vkSj RkS;kj [kM+s FksA ;g QdZ D;ksa\ mRrj%& ;s eqyfteku ml le; dejs esa rS;kj [kM+s Fks ;g ckr lgh gS jkLrs ls [khap dj ugha ys x;sA eq>s dejs ds vUnj ys tkdj dejs esa dksbZ ekjihV ugha dh Fkh bLrxklk ,Dth0Mh0&1 ds Hkkx , ls ch esa tks fy[kk gS eaxy us nhxj eqyfteku ls dgk fd ns[krs D;k gks lkys dks tku ls ekj nks bl ij eqyfteku ua0 1 rxkor 9 j?kqukFk o eq>s eaxy eqyfte ds dejs ds vUnj ys x;s vkSj eqyfteku eaxy QSyh] eqY;k eksguyky] lksgu flag] gfj flag o cus flag] egkjkt flag] VsdpUn j?kqukFk dks ykBh ?kwlk o FkIiM+ksa ls ekjus yxsA j?kqukFk dks ;g tks ekjihV fy[kh gS og ckgj gqbZ FkhA eaxy ds dejs esa ugha gqbZ FkhA pcqrjk ij j?kqukFk dks eqyftekuksa }kjk ekjihV djus dks eSaus dgh Fkh bLrxklk ,Dth0Mh0 1 esa pcqrjk ij ekjus dks ugha fy[kh gksxh eSaus rks dgk FkkA gesa gqDdk ihus dks chjcy us jksdk Fkk gfj flag us ugha jksdk FkkA tks ,Dth0Mh01 Hkkx lh ds m esa fy[kk gS ,slk ugha gSA dk'kh ds cM+s HkkbZ dk HkkSfj;k gS ftuds ;gka ge lxkbZ djus x;s FksA esjs mBus ds ckn tc eSa flufiuh vk;k vkSj eSaus yksxksa dks rc ckr crk nh rks eSa Fkkus ij fjiksZV djus x;k FkkA Fkkusnkj us eq>s QVdkj fn;kA NwVus ds ckn Fkkus ij ge vkB ukS cts lqcg Fkkus ij igqWaps FksA ogka dqN ugha fd;k ogka ls vkdj ;gka Hkjriqj bLrxklk vnkyr esa fd;kA ;gka vnkyr esa nl X;kjg cts vk x;s Fks vkSj rc okn fy[kkdj nl cts is'k dj fn;kA ,d fnu NksM+dj nwljs fnu bLrxklk U;k;ky; esa is'k dj fn;kA " 19. In this case it has not been brought on record as to how and why deceased Raghunath accompanied Handoo PW 2. It has been stated by Handoo that he invited the deceased to accompany him in order to help PW 2 in the engagement of his daughter. If this theory is disbelieved then the presence of PW 2 at the scene of occurrence becomes doubtful because the very basis of his presence vanishes. It has not been explained as to why Raghunath was chosen for this purpose. The other circumstance to disbelieve PW 2 on this point is that PW 2 claims that engagement was finalised with the sons of Kesha but Kashiram has not been produced by the prosecution. It has been stated by PW 2 that Rs. 11/- were paid as a Dastoor of Sagai (engagement) PW 2 further stated that the amount was given to the grand father of the boy whose name is not known to him. This is really surprising that PW 2 did not know the name of that person with whose grand son engagement of his daugther was settled one day before the day of occurrence. More over both Kashiram and his father did not come in the witness box to support his version. 20. In this case one more important question to be answered by the prosecution is that whether it has been proved beyond reasonable doubt that PW 2 went to village Gandhi Nagar also with the deceased Raghunath. After going through the statement of PW 2 we are of the opinion that PW 2 whether accompanied the deceased Raghunath is too doubtful. PW 2 deposed that at the time when he and Rahunath were entering village Gandhi Nagar PW 5 offered to smoke Hukka but they refused and went on ward and after some distance he saw Birabal smoking Hukka who also offered the smoking and then witness and deceased stopped and started smoking Hukka and at that time Amarsingh PW 3 and Gheesha PW 1 also arrived, but PW 1 and PW 3 and PW 5 did not at all support the statement of PW 2. They have stated that they did not see PW 2 in village Gandhi Magar on that day when dead body of Raghunath was found in the village. 21. They have stated that they did not see PW 2 in village Gandhi Magar on that day when dead body of Raghunath was found in the village. 21. The testimony of PW 2 is further weakened due to reason that he has stated in court that after he was set free he reached to his village and. there he narrated the incident to wife and son of Raghunath and other villagers- Wife of Raghunath PW 8 and son PW 6 came in the witness box. PW 8 stated that PW 2 Handoo was narrating the incident in garwada (may be a street) and while passing she also heard. She did not say that PW 2 came to her and stated the incident. PW 6 stated in court that PW 2 Fandoo told in the village that at the time when he (Handoo) and Raghunath were passing through Gandhi Nagar, Pheli, Harisingh, Mohanlal Tek Chand, Moolia caught hold of them and took them to a room and started beating Raghunath. It meant that Handoo did not state about his confinement and infliction of injury on the person of Raghunath by gun shot and PW 2 made improvement in his statement subsequently. The statement of Handoo is further contradicted by PW 8 on the point of engagement. PW 2 Handoo states that he went in connection with the engagement of his daughter but PW 8 says that her husband went Handoo in connection with her daughter's engagement, and Rs. 11/- cash were paid by Raghunath to the boy with whom engagement of her daughter was settled. 22. PW 2 Handoo says that accused-appellant Pheliram fired before him on the chest of Raghunath but PW 8 and PW 6 before whom PW 2 narrated the incident in their statements no where stated that Handoo told them that Pheli fired on the chest of Raghunath. This is material contradiction and fatal for the prosecution because accused appellant Pheliram is convicted under Section 302 IPC due to the reason that he is said to have inflicted a gun shot injury on the person of deceased Raghunath. Because of this reason this statement of PW 2 Handoo that Pheli inflicted gun shot injury on the person of Raghunath is not worth to be accepted. 23. Because of this reason this statement of PW 2 Handoo that Pheli inflicted gun shot injury on the person of Raghunath is not worth to be accepted. 23. One more important fact to disbelieve the testimony of PW 2 is that why this witness was taken to the house of Mangal along with the deceased. If the accused-appellant might have intended to murder Raghu Nath then they must have avoided the presence of PW 2. At one stage PW 2 stated that he was also slapped by Hari Singh. We fail to understand that why PW 2 was taken and why he was slapped. The accused appellants might have given beating to Raghu Nath in the presence of PW 2 is also doubtful. According to Handoo the accused appellant gave beating to Handoo and after that they confined PW 2 in a room. This statement of PW 2 is also not believable because at one stage PW 2 stated that Raghu Nath died before he (PW 2) was put into confinement and at 12 in the night he (PW 2 was brought out of the room and brought to the place where Raghu Nath was lying and there at that time Pheli fired the gun on Raghu Nath. This conduct of the accused-appellant is quite unnatural, because a person while committing murder will try that offence should be done in the absence of any person or that there should not be any possibility of witnessing the crime. As per the statement of PW 2 the accused appellant forced him to take oath that he would not disclose to any body the things happened before him. This means that the accused appellants were fully cautious that there should not be any evidence against them. It is quite unnatural that at one stage the accused appellant will allow the presence of a witness and at the other stage they will force the witness to take oath that he will not disclose the facts seen by him. This fact again makes the testimony doubtful. PW 2 Handoo has given a conflicting version about the gun shot. At one stage he heard the fire of gun when was confined with in room of accused and at a later stage he says that gun was fired at the time when he was brought out and brought to the room where Raghu Nath was lying. PW 2 Handoo has given a conflicting version about the gun shot. At one stage he heard the fire of gun when was confined with in room of accused and at a later stage he says that gun was fired at the time when he was brought out and brought to the room where Raghu Nath was lying. Because of this reason the theory of gun fire becomes doubtful. Moreover, why the accused shall fire in the presence of this witness when they had the opportunity of gun shot in the absence of PW 2. 24. It has been stated by PW 9 Dr. M.C. Vidhyarathi that the gun shot injuries sustained by Raghu Nath were the result of two different shots and that too in different situation. He has stated that injury number 7 can be caused by firing from the front side while the deceased must be in standing condition while injury number 8 can be caused by side. But PW 2 says that accused appellant Pheli Ram fired two shots white Raghu Nath was lying on the ground. This makes the statement of PW 2 as doubtful. Moreover Ex. P 7 and Ex. P 8 also make the prosecution case doubtful. The police was in doubt so it asked for certain clarification vide letter Ex. P 7 and reply of which was given by PW 8 vide letter Ex. P 8. 25. It has been stated by PW 2 Handoo that before filing the complaint in court he first tried to lodge the report before police but this part of his statement does not get any support from any officer or employee of the police. 26. There is no consistency in the version given by the witness at the aforesaid points of time. He is the solitary witness of the incident and his testimony does not bear any careful scrutiny. He does not meet with the test laid down for placing reliance on the testimony of solitary witness in AIR 1976 SC 560 and AIR 1980 SC 102 . 27. Another reason to discredit PW 2 is that his testimony is in direct contradiction to the medical evidence on record. According to PW 2 Handoo the deceased was mercilessly belaboured by lathi blows by the appellant and others. However, according to PW 9 Dr. Vidhyarathi deceased did not have any injury by lathi on his person. 28. 27. Another reason to discredit PW 2 is that his testimony is in direct contradiction to the medical evidence on record. According to PW 2 Handoo the deceased was mercilessly belaboured by lathi blows by the appellant and others. However, according to PW 9 Dr. Vidhyarathi deceased did not have any injury by lathi on his person. 28. Further more there is no corroboration to the version given by PW 2 Handoo. According to him there were about 50 persons present in the Panchayat when this witness was released from custody. None from large number of persons stated to be present at that time have been examined. 29. The version given by PW 2 Handoo stands discredited from the statement of doctor and has stated that the two fire arm injuries present on the person of the deceased might have been caused simultaneously by two different fire arms. 30. According to PW 2 Handoo the deceased died during day time. However as per Ex. P 9 the death of deceased took place at about mid night. 31. Reliance is placed on AIR 1981 SC 1578 (Mehar Singh v. State of Punjab) on the point that conviction cannot be sustained in view of inconsistency between occur evidence and the medical evidence. 32. The learned public prosecutor has given much stress on Ex. P 23. It was contended by him that in Ex. P 23 it has been admitted by accused Pheli Ram that he fired the gun which hit the deceased Raghunath. It was thus argued that Ex. P 23 can be made the basis of conviction. We are unable to accept this contention because of the following reasons. 33. Ex. P 23 is legally not sustainable in evidence. According to PW 24 Gainda Singh a written report was submitted to him by the appellant Pheliram at the place of occurrence on March 17, 1981. However the original of that report does not obtain on record, Ex. P 33 is stated to be the photo copy of the original. There is no evidence on record to sustain the fact that the Ex. P 23 is the correct and faithful photo copy of the original. PW 24 Gainda Singh stated on the oath in court that the original of Ex. P 23 was in the file of Sessions case No. 8/83 State v. Maharajsingh . There is no evidence on record to sustain the fact that the Ex. P 23 is the correct and faithful photo copy of the original. PW 24 Gainda Singh stated on the oath in court that the original of Ex. P 23 was in the file of Sessions case No. 8/83 State v. Maharajsingh . On examination of the record of the Sessions case No. 8/83 State v. Maharaj Singh the trial court found that the statement of PW 24 Gainda Singh to the above effect was factually incorrect as the original of Ex. P 23 was not obtaining even in the record of that case. In view of these circumstances Ex. P 23 cannot be held to be legally admissible for the following reasons: (i) It has not been established that Ex. P 23 is the correct and faithful copy of the original; (ii) The original of Ex. P 23 has not been proved to be lost or destroyed; (iii) The Ex. P 23 cannot be taken to be secondary evidence as it is not covered under the provisions of Section 63 of the Indian Evidence Act, 1872; (iv) Assuming that Ex. P 23 constitutes secondary evidence, the same has not been brought on record in accordance with the provisions of Section 65 of the Indian Evidence Act, 1872. 34. Reliance is placed on AIR 1948 PC 114 on the point that unless the original is proved to be lost or destroyed the secondary evidence is not satisfied. 35. Reliance is placed on AIR 1947 PC 15 and 1953 RLW 231 on the point that Ex. P 23 does not constitute secondary evidence as neither its scribe has been produced nor there is any oral account of the contents of the document as required under Section 63 of the Evidence Act. 36. The reliance is placed on AIR 1946 PC 24 to the effect that Ex. P 23 is not admissible as it has not been proved to be the correct copy of the original. 37. Ex. P 33 cannot be taken to be a public document as it does not come in the definition provided under Section 74 of the Evidence Act. 38. If Ex. P 23 is held to be a confession recorded or handed over to the police officer, then as well it cannot put in evidence under Section 74 and 80 of the Evidence Act. 38. If Ex. P 23 is held to be a confession recorded or handed over to the police officer, then as well it cannot put in evidence under Section 74 and 80 of the Evidence Act. Reliance is placed on AIR 1964 SC 358 and AIR 1936 PC 253 . 39. Even if Ex P 23 is held to be faithful copy of the original, it does not incriminate the appellant. It would be seen that Ex. P 23 bears thumb impression of the appellant. He can not thus be attributed knowledge of the contents of the document. More over the contents of the document do not warrant the inference that the appellant fired at the deceased Raghunath. This is not contained in the document. 40. Ex. P 23 cannot be taken to be the public document as its certified copy under Section 76 of the Evidence Act, 1972 cannot be available as the original document is not in the custody of any public officer. PW 4 Parma has been produced by prosecution in order to support the version of PW 2 Handoo. We have gone through the statement of PW 4 and we find that both the statements are inconsistent on material points such as throwing of pink colour on Raghunath and Handoo. It has been stated by PW 4 that he went to call Handoo in order to get his daughter engaged. He has not stated that he and Handoo had any understanding of engagement prior to the day when PW 4 went to call Handoo. It is thus not clear that when PW 4 went to call Handoo and why Raghunath accompanied there. PW 4 is admittedly a partison witness. PW 4 has disowned the major part of his previous statement Ex. D-4 and Ex. 5, because of inconsistent statement no reliance can be placed on the testimony of PW 4. One more circumstance to disbelieve his statement is that he was the person who identified the dead body of Raghunath before the police officers of high rank but at that time PW 4 did not disclose that prior to the day of occurrence Raghunath and Handoo were with him or that colour was thrown on them or that they went to settle the engagement. On the basis of statement of PW 16 and PW 17 the learned Sessions Judge observed that deceased Raghunath used to commit dacoity and PW 16 and PW 17 also went with Raghunath to commit dacoity. We have gone through the statement of these witnesses, we do not find any thing in their statement so as to reach the finding arrived at by the learned Sessions Judge. Even the wife and son of the deceased who have come in the witness box did not support the motive alleged by the prosecution and observed by the learned Sessions Judge. 41. It was case of prosecution that deceased Raghunath was a dacoit and he used to keep the stolen property with Mangal (died during trial) and in order to usurp that property Mangal managed to murder Raghunath. But these facts are not at all proved by the prosecution. Even the wife and son of Raghunath has stated that they had no knowledge that the movable property of Raghunath was with Mangal. 42. In the light of above discussion we are of the opinion that the prosecution has utterly failed to prove the author of the injuries No. 7 & 8 which are considered solely responsible for the death of the deceased, though Pheliram has admitted in his First Information Report that the fire from .12 bore gun was from his side but from this admission alone, it is proved that Phleli Ram accused is only responsible for the fire arm injury and none else. Prabhu PW has also specifically stated that he started firing from his gun on hearing the firing from the dacoits. More over, the prosecution has utterly failed to prove that the recovered bullet article No. 1 extracted from the body of the deceased could be fired from the .12 bore gun. Recovered bullet was not sent to the laboratory for finding out or for proof that the same could be fired from the 12 bore gun. In the absence of the expert testimony to this effect it cannot be held that article No. 1 was fired from 12 bore gun of Pheli Ram and not from any other gun. 43. PW-6 and PW-8 in their statements before the Court admitted that the murder of Raghunath was in their knowledge and also in the knowledge of their relatives before they got the information from Handoo. 43. PW-6 and PW-8 in their statements before the Court admitted that the murder of Raghunath was in their knowledge and also in the knowledge of their relatives before they got the information from Handoo. Even the report was not lodged upto 19-3-83 though the wife and son of Raghunath along with other villagers went to the police station and took the deadbody. It is not understood why they failed to lodge the report then and there which goes to show that the complaint has been filed at the instance and persuation of others. 44. Looking to the entire facts of the case it also transpires that there are completely two different stories of the case. One story which has been believed by the learned Sessions Judge is solely based on the statement of Handoo which is not corroborated and his evidence is self contradictory. The other story which has been produced by the accused-appellant is more or less supported by the prosecution witnesses and is more probable in the facts and circumstances of the case than the story put forward by the prosecution and believed by the learned Sessions Judge, The high police officers who are specially trained in the detection of the crime including Gendasingh S.H.O. Police Station, Kumher and the villagers in general in the absence of any contradictory report, took it for granted from the perusal of the side and the statement of the villagers that Raghunath was a dacoit who came in the village to committ dacoity and in that process Raghunath sustained and died on the spot. None including Parma, came forward on 17th March, 1981 at village Simpani or Police Station Kumher upto the cremation to depose otherwise. Upto the night of 18th March, 1981 it was not known to any body as to who caused the injury to the deceased. It is in the night of 18th March, 1981 that the entire story was cooked up at the instance of Jaideo Sarpanch for the reason best known to them. 45. After going through the evidence of the prosecution it can be safely concluded that the statements of the prosecution witness which have been produced by the prosecution in support of its case did not corroborate each other on the material points and their statements are self contradictory. 45. After going through the evidence of the prosecution it can be safely concluded that the statements of the prosecution witness which have been produced by the prosecution in support of its case did not corroborate each other on the material points and their statements are self contradictory. They have been admitted in their statements that they heard that a dacoit has been killed in the dacoity near village Gandhi Nagar. Even this fact has been admitted by the wife and son of the deceased in their statements. If they had any doubt about it then they should have come forward to depose the real story then and there before the high officers of the police. In these circumstances it goes to show that the whole story has been fabricated and cooked up at the instance of Jaideo Singh PW-11 Sarpanch of the area. It is an admitted fact that there is political rivarly between Jaideo Singh and the accused-persons. In this view of the matter it is clear that the accused-appllants have been implicated in the case falsely and the findings of the learned Sessions Judge deserve to be set aside. 46. The prosecution cannot be said to have proved its case beyond reasonable doubt. As observed in para 12 of the case of Sarwan Singh v. State of Punjab ( AIR 1957 SC 637 ) the prosecution must cover the distance between may be true and must be true by legal reliable and impeach-able evidence. This is lacking in the present case. 47. In view of the foregoing discussion we allow there appeals and set aside the conviction and sentence passed by the learned Sessions Judge and acquit the appellants pheli Ram, Hari Singh, Mohanlal and Moolya from all the charges levelled against them. They except pheli Ram are on bail. Their bail bonds shall stand cancelled. Accused pheliram should he released forth with.Appeals allowed. *******