JUDGMENT 1. - D.B. Criminal Appeal No. 332/33 has been preferred by Krishna and Munshi and D.B. Criminal Appeal No. 328/83 has been preferred by Mahaveer, Rajveer, Pappu, Pyare Lal and Ramesh. All these appellants were found guilty and sentenced by the Additional Sessions Judge, Dholpur in Session Case No. 35/1983. Both these appeals are against the same judgment, hence they they are disposed of by this common judgment. 2. The accused-appellants have been found guilty and sentenced by the Additional Sessions Judge, Dholpur vide his judgment dated 17.8.83 as under:- (i) Accused Mahaveer: (ii) for offences under section 436 IPC to five years' rigorous imprisonment and a fine of Rs. 2000/-, in default of payment of fine to further undergo six months' rigorous imprisonment. (iii) for offences under section 395 IPC to seven years' rigorous imprisonment and a fine of Rs. 2000/- in default of payment of fine to further undergo six months' rigorous imprisonment. (2) Accused Rajveer and Pyarelal: (i) for offences under section 302/149 IPC to imprisonment for life and a fine of Rs. 2000/- in default of payment of fine to further undergo six months' rigorous imprisonment. (ii) for offences under Section 436 IPC to five years rigorous imprisonment and a fine of Rs. 2000/-, in default of payment of fine to further undergo six months' rigorous imprisonment. (iii) for offences under Section 395 IPC to seven years' rigoifras imprisonment and a fine of Rs. 2000/-, in default of payment of fine to further undergo six months' rigorous imprisonment. (3) Accused Pappu: (i) for offences under section 302 IPC to imprisonment for life and a fine of Rs. 2000/-. (ii) for offences under section 395 IPC to seven years' rigorous imprisonment and a fine of Rs. 2000/-, in default of payment of fine to further undergo six months'rigorous imprisonment, (4) Accused Ramesh: (i) for offences under section 302 IPC to imprisonment for life and a fine of Rs. 2000/-. (ii) for offences under section 395 IPC to seven years' rigorous imprisonment and a fine of Rs. 2000/-, in default of payment of fine tc further undergo six months' rigorous imprisonment. (5) Accused Krishna: under section 302 read with 149 IPC imprisonment of life and fine of Rs.2000/- & in default of payment of fine 6 months' rigorous imprisonment. under section 436 IPC rigorous imprisonment for five years & a fine of Rs. 2000/-, in default of payment of fine tc further undergo six months' rigorous imprisonment. (5) Accused Krishna: under section 302 read with 149 IPC imprisonment of life and fine of Rs.2000/- & in default of payment of fine 6 months' rigorous imprisonment. under section 436 IPC rigorous imprisonment for five years & a fine of Rs. 2000/- and in default of payment of fine 6 months' rigorous imprisonment. under section 395 IPC rigorous imprisonment for 7 years and a fine of Rs. 2,000/- and in default of payment of fine 6 months' rigorous imprisonment. (6) Accused Munshi: under section 302 IPC rigorous imprisonment for life and a fine of Rs. 2000/- and in default of payment of fine 6 months' rigorous imprisonment. under section 148 IPC rigorous imprisonment for one year. under section 395 IPC rigorous imprisonment for 7 years and a fine of Rs. 2,000/-, in default of payment of fine 6 months' rigorous imprisonment. All the sentences were ordered to run concurrently. 3. The brief facts of this case are that Sobaran Singh Sarpauch gave verbal information at Police Station, Badi on 23rd August, 1981 at 12.10 p.m. to the fact that he had heard in village Abdulpur that three persons have been killed and their houses have been put to fire by Thakurs yesterday at about 5-6 p.m. due to an old enmity going on between Shamars and Chauhans. He had stated that he does not know other details as to who was killed by whom. On receipt of this information the SHO Badi ran at the spot and he recorded the parcha-bayan of Gokui which is Ex. P 1. In that parcha-bayan Gokul stated that yesterday evening at 5 O' clock he had come from his field to his house. Ram Bharose and Shankar were sitting on the roof of the house. The ladies of the house were working in the house. At that time Ram Bharose cried that miscreants had field at Baboo. Siya Ram closed the door of the house Ram Bharose. Shanker and Bhikha entered in to the 'kotha' of Baboo and Siya Ram also entered in to the kotha of Baboo. Shanker and Ram Bharose entered in to the kothi for keeping grain. Bhikha who was in the house also went in to the 'kotha' to hide himself. Siya Ram closed the door of the house Ram Bharose. Shanker and Bhikha entered in to the 'kotha' of Baboo and Siya Ram also entered in to the kotha of Baboo. Shanker and Ram Bharose entered in to the kothi for keeping grain. Bhikha who was in the house also went in to the 'kotha' to hide himself. He has further stated that when they were inside the kotha he heard the voices Gangadhar, Pappu S/o Mehtab and Munshi S/o Bhogi entered tin to the 'kotha' where they were hidden and Ramesh dragged Shanker out of the 'kotha'. Munshi uttered that nobody should be left alive and all be finished. Shanker fired at Ramesh and Pappu fired at Bhikha. Mst. Samariya who wwas also inside the kotha was taken out from the kotha. Rajendra fired at Ram Bharose who was inside the kothi. Chandaniya mother of Bhikha requested not to kill Bhikha but they did not agree to it. All the miscreants after murdering them ran away from the house. When he came out of kotha, the ladies of the house informed him that Pyare S/o Bhoori Singh, Rajendra S/o Pyare and Munshi, Mahaveer, Ramniwas Rajveer, Ramesh, Pappu and Mukandi came down from the roof and collected them in the chowk and asked them to sit there. Munshi, Rajendra, Ramesh and Pappu had gun in their hands while others had lathies. When Rajendra Ramesh and Pappu came out of the kotha they told them that they will sell all the ladies in the market. At that time five persons wearing 'khaki dress having gun in their hands were standing there and they rescued the ladies and sent them inside the house. Those miscreants had taken away clothes and utensils of the house and one she buffalo with child she-buffalo belonging to Roshan. While going they told them that if any report is made at the Police Station they will also be killed. All the persons residing in the village ran away due to this fear. He also could not come to report at the Police Station on account of fear and he remained sitting along with the dead bodies. He has also stated that an old enmity was going on between them and Thankurs and on account of that enmity they murdered their person and looted the property and the house were set fire. 4. He also could not come to report at the Police Station on account of fear and he remained sitting along with the dead bodies. He has also stated that an old enmity was going on between them and Thankurs and on account of that enmity they murdered their person and looted the property and the house were set fire. 4. On the basis of this percha bayan the Police registered a case u/s 396 and 436 IPC and commenced the investigation. After completing the investigation the Police submitted the challan against 11 persons out of whom two were alleged to be absconding. The accused persons were committed to the Court of Additional Sessions Judge, No. 1, Dholpur. The Additional Sessions Judge, No. 1, Dholpur framed charges under section 396 and 436 IPC against 7 accused persons on 82. Thereafter on 28/6/82 Addl. charges were framed against these accused persons under section 302, 302/149 and 148 IPC. The accused persons denied all the charges and claimed trial. 5. The prosecution has examined 16 witnesses to establish its case. The accused persons also examined 7 witnesses in their defence. They also filed certain documents in their defence. The learned trial Judge after completing trial found 7 accused-appellants guilty of the offences as mentioned above and sentenced them. 6. The appellants Ramesh, Pappu and Munshi have been found guilty of the offence under section 302 IPC and 148 IPC. The other accused-appellants have been found guilty under section 302/148 IPC. All the accused-appellants have been found guilty of the offence under section 396 IPC and accused Mahaveer, Rajveer, Pyare Lai and Krishna have been found guilty of the offence under section 436 IPC also. Thus the learned Addl., Sessions Judge convicted the appellants Munshi, Pappu and Raroesh u/s 302 and 148 IPC. He convicted the other appellants under section 302 read with 149 IPC. 7. The learned counsel for the appellants argued that the prosecution has failed to prove that the accused persons had formed an unlawful assembly. Unless an unlawful assembly has been formed by the appetlanis the appellants Krishana, Mahaveer, Rajveer and Pyare Lai cannot be held guilty for the offences under section 302 read with 149 IPC. According to them the four appellants who were alleged to be armed with lathies were inthechowk. Unless an unlawful assembly has been formed by the appetlanis the appellants Krishana, Mahaveer, Rajveer and Pyare Lai cannot be held guilty for the offences under section 302 read with 149 IPC. According to them the four appellants who were alleged to be armed with lathies were inthechowk. The prosecution has not alleged that these four appellants had any common object alongvvith Munshi, Pappu and Ramesh. No other act of these four appellants have been alleged by the prosecution. The prosecution witnesses also have not stated that these four appellants had also participated in this act of murder. The only allegation against these four appellants is that they were in the chowk and they made all the ladies of the house to si,f. in the chowk. Except this act the appellants Krishana, Mahaveer, Rajveer and Pyare Lai had not acted in any manner. They did not beat anybody. They did nov participate in the murder of three persons. It was argued that appellants Krishana was about 19 years of age, Mahaveer was about 29 years of age, Rajveer was about 17 years of age and Pyare Lai was about 54 years of age. All these appellants belonging to one family. These four appellants have been falsely implicated in this case. It cannot be believed that Krishana, Mahaveer and Rajveer would have any common object of murdering these persons. The prosecution has failed to prove that the appellants had any common object and in furtherance of their common object they have formed an unlawful assembly. Therefore these four appellants could not be convicted for the of under section 302 with the aid of section 149 IPC. 8. The learned Public Prosecutor in reply to this argument contended that an old enmity was going between the parties. One year Before this incident Roop Singh brother of accused Rajendra Singh was murdered and the complainant parties were accused in that case. So in order to take revenge of that previous murder of Roop Singh the accused persons had murdered these persons. All the appellants had common object and that object was to take revenge from the complainant party. In furtherance of that common object they collected at the house of Baboo and committed this offence. So on account of enmity they had taken this revenge. They have formed an unlawful assembly and committed this murder. All the appellants had common object and that object was to take revenge from the complainant party. In furtherance of that common object they collected at the house of Baboo and committed this offence. So on account of enmity they had taken this revenge. They have formed an unlawful assembly and committed this murder. Every appellants is liable for this act of murder being member of an unlawful assembly. 9. We have considered the arguments with regard to forming an unlawful assembly. We have also perused the entire case on record and minutely scrutinised the statement of the prosecution witnesses. There is no iota of evidence suggesting that accused-appellants had any common object. There is nothing on the record to prove that they had pre-planned or premeditated to murder these three persons. The contention of the learned Public Prosecutor that on account of enmity the accused-appellants had committed this offence but this contention can be vice-versa also. It is admitted that Roop Singh brother of Rajendra Singh accused was murdered one year before this occurrence and the complainant party was accused in that case. So this is possible that to take revenge these accused persons have been falsely implicated in this murder case. So enmity is a double edged weapon and this cab ne used for either side. It is for the prosecution to prove that the accused persons collected with a common object and in furtherance of the object they committed this offence. We do not find had formed an unlawful assembly. Therefore, the prosecution has completedly failed to prove that the accused-appellants have formed an unlawful assembly. Unless an unlawful assembly has been established, the appellants Krishana, Mahesh, Rajveer and Pyare Lal could not be convicted with the aid of Section 149 IPC. 10. From the judgment we find that the learned Additional Session Judge did not find guilty these four appellants under section 148 IPC. An Additional charge has been framed against all the appellants u/s 148 IPC. The operative portion of the judgment says that the learned Additional Sessions Judge found accused Munshi, Pappu and Ramesh Guilty of the offence under section 148 IPC and he sentenced each accused for this offence one year''s rigorous imprisonment but in the operative portion there is no mention that the appellants Krishna, Mahaveer, Rajveer and Pyarelals were also found guilty of the offence under section 118 IPC. There is no sentence passed against these four persons under section 148 IPC. A specific charge has been framed against these four accused persons under section 148 IPC. The Additional Sessions Judge should have held these four appellants guilty of the offences under section 148 IPC, and should hae sentenced them under this offences, as he had found guilty the other three accused appellants Munshi, Pappu and Ramesh under section 148 IPC and sentenced them to one years's rigorous imprisonment. Therefore, this is a mistake committed by the learned Additional Sessions Judge. If he had found these four appellants guilty of the offence under section 148 IPC also, he should have convicted them and sentenced them separately. Without convicting these four appellants u/s 148 IPC, the learned Additional Sessions Judge convicted these four appellants under section 302 read with 149 IPC, treating that these four appellants were members of an unlawful assembly. We, therefore, find that the learned Additional Sessions Judge has committed this mistake which he should not have committed. There is no specific judgment that they are found guilty of the offence under section 148 IPC also. They have not been sentenced for this offence, therefore, their conviction with the aid of section 149 is bad. 11. In view of our above discussion, we find that the learned Addl. Sessions Judge has failed to appreciate that the appellants had formed an unlawful an unlawful assembly that in furtherance of the common object as a member of an unlawful assembly they committed the murder. Therefore, no case is made out against Krishna, Mahaveer, Rajveer and Pyare Lai of the offence under section 148 IPC. We also held that no case is made out under section 148 IPC against Munshi, Pappu and Ramesh also. For an unlawful assembly they should be 5 or more than 5 persons. Four of the appellants Krishna, Mahaveer, Rajveer and Pyare Lai have not been found the members of an unlawful assembly. Two of the accused who have been challaned by the police have been acquitted, so they were not found to be member of an unlawful assembly. There remains only three accused persons and these three persons could not be found member of an unlawful assembly because there number is less than 5. Hence their conviction under section 148 IPC is also bad. 12. There remains only three accused persons and these three persons could not be found member of an unlawful assembly because there number is less than 5. Hence their conviction under section 148 IPC is also bad. 12. As no unlawful assembly has been found by the appellants Krishana, Mahaveer, Rajveer and Pyarelal so their conviction u/s 302 read with 148 IPC is also bad. It ii not the contention of the prosecution that these four appellants fired and for this they are responsible for the murder of Ram Bharose, Shankar and Bhikha. Therefore, these four appellants could not be held responsible for the offence u/s, 302 IPC and they are not found guilty of this offence. 13. All the appellants have been found guilty of the offence under section 395 IPC also. In this regard we have gone through the judgment as well as the record of this case and we found that no case is made out against the appellants under this offence. They have been found guilty of dacoity but there is no evidence on record about this aspect and even no inference can be drawn from the evidence of prosecution witnesses that the appellants had committed any dacoity Therefore, the conviction of all the appellants under section 395 IPC is also bad and cannot be sustained. 14. Appellants Rajveer, Pyarelal and Krishna have been found guilty of the offence under section 436 IPC. The allegation against these persons is that they set fire the houses of the complainant party. In this regard we have accused the entire evidence and we find that the prosecution has failed to prove this aspect also. From the record and from minute scrutiny of the evidence, we do not find that these appellants had set fire the bouse of the complainant and, therefore, they are not found guilty of this offence. Their conviction under section 436 IPC is bad and cannot be maintained. 15. Now remains the case of appellant Pappu, Munshi and Ramesh for the offence under section 302 IPC. According to the prosecution story the accused Pappu fired at Bhikha and he died on account of that fire. Accused Ramesh fired at Shankar and he also died on account of that fire. Rajendra who is not an appellant has fired at Ram Bharose who also died on account of this fire. In the Parchabayan Ex. According to the prosecution story the accused Pappu fired at Bhikha and he died on account of that fire. Accused Ramesh fired at Shankar and he also died on account of that fire. Rajendra who is not an appellant has fired at Ram Bharose who also died on account of this fire. In the Parchabayan Ex. P 19, there is no allegation that appellant Munshi also fired and on account of his fire some body had died. Three persons have died and they are Shanker, Bhikha and Ram Bharose. It is not mentioned that Munshi fired at one of these three persons. Gokul PW 3 who is an eye-witness has not stated that Munshi appellant also fired. PW 2 Mst. Samaria has stated that Munshi also fired at Ram Bharose, so the allegation against Munshi is that he and Rajendra both fired at Ram Bharose. Thus there is difference between the statement of PW 2 Samaria and PW 3 Gokul about firing by Munshi Had Munshi also fired at Ram Bharose Gokul would have stated in the Parchabayan Ex. P 19 and also would have stated in his Court statement. Because Rajendra is absconding, so Munshi has been implicated in firing at Ram Bharose. This is the reason that Mst. Samaria PW 2 was made to give this statement that Munshi also fired at Ram Bharose. The first was made by Rajendra and then the second fire was by Munshi. This difference is very material difference and shows that Munshi has been falsely implicated in this case. 16. The eye-witnesses to this thing are Siyaram PW 1, Mst. Samaria PW 2, Shri Gokul PW 3 and Smt. Chandra PW 4. Whether these eye-witnesses are reliable and trustworthy witnesses, whether any reliance can be placed on the statement of these eye-witnesses is to be seen. In this regard we have minutely gone through the statement of all these witnesses. We find that the witnesses have improved their testimony in the court statements. They have not stated something in their Police statements when recorded during investigation. They have contradicted their Police statements. So minute reading and scrutiny of their testimony, we are of this opinion that the eye-witnesses are unreliable and untrustworthy witnesses. In a murder case no conviction can be based on the testimony of such witnesses whose testimony is not trustworthy, reliable and creditable. They have contradicted their Police statements. So minute reading and scrutiny of their testimony, we are of this opinion that the eye-witnesses are unreliable and untrustworthy witnesses. In a murder case no conviction can be based on the testimony of such witnesses whose testimony is not trustworthy, reliable and creditable. We will discuss the evidence of each eye-witness. 17. From the reading of the record we find that the story as put up by the prosecution is not a correct story. They have concocted some facts and created a story. The evidence is that Ram Bharose and Shanker were sitting on the roof of the house. It is in the evidence that all the deceased persons and some other persons were residing at the house of Baboo. Baboo is, no doubt, their relative and Baboo had only two rooms connected with each other. Baboo also resides in the same house in which Ram Bharose, Shankar, Roshan, Bhikha Ram, Siya Ram and others were also residing. All these persons had separate houses but according to the prosecution at the time of occurrence all were living with Baboo in these tow rooms. It is not believable that in two rooms of Baboo these 7 person alongwith their family will reside. The contention is that on account of old enmity with the Thakurs they feared to live at their own houses and that is why all were residing at the house of Baboo. This contention is not correct and unbelievable. Roopsingh was murdered one year before this occurrence and a case is pending against complainant party treating them as accused. Roop Singh is brother of accused Rajendra. So, if there was any fear of these Thakurs, these members of complainant party could not have left alive for the whole year. If Thakurs had any intention to take revenge there was no obstruction for them to murder these persons prior to the date of occurrence. Had there been any fear, all these person would have been living since or year at the house of Baboo Lal. Just at the time of occurrence they come to the house of Baboo Lal and live together. Therefore, this aspect that all these persons were living at the house of Baboo Lal is an unbelievable fact. 18. The evidence is that Ram Bharose and Shanker were at the roof of the house. Just at the time of occurrence they come to the house of Baboo Lal and live together. Therefore, this aspect that all these persons were living at the house of Baboo Lal is an unbelievable fact. 18. The evidence is that Ram Bharose and Shanker were at the roof of the house. They heard gun shot and the cry that the Thakurs had fired at Baboo. It it is fact then Baboo must be injured. But this is a wrong fact. Baboo has been examined as PW 6 and if we read the statement of Baboo PW 6, we find that the statement of other prosecution witnesses with regard to Baboo is a false statement. The other prosecution witnesses have not seen Baboo and it is not possible that Ram Bharose and Shankar had seen Baboo and had seen that Thakurs had fired at Baboo. Baboo PW 6 has stated that he was in the jungle and while coming to the village he heard gun fire, so this sound of gun fire came from the village side. He saw that 6 persons were Chohans Thakurs alongwith 5 persons dressed in Khaki armed with guns. He had seen that Rajendra, Ramesh, Pappu and Munshi were armed with gun and other accused were armed with gun and other accused were armed with lathies. He had seen that they were 15-16 persons in all and after seeing them he hide himself in a field of Pazra. He then remained there and when accused left the place he saw fire-smoke and then he came after one hour at the house and found Ram Bharose, Shankar and Bhikha dead. Thus this statement of Baboo Lal is quite a different statement then other prosecution witnesses. There is no question of seeing Baboo Lal by Ram Bharose and Shankar. The story of seeing Baboo Lal or of coming the accused persons from the back side of the house after climbing the roof is a connected one. It is an admitted fact that appellants reside in front of the house of Baboo Lal and others. Their houses are not at a distance but the distance is only of a road. The story of seeing Baboo Lal or of coming the accused persons from the back side of the house after climbing the roof is a connected one. It is an admitted fact that appellants reside in front of the house of Baboo Lal and others. Their houses are not at a distance but the distance is only of a road. There was no occasion for the accused persons to come for dacoity armed with deadly weapon from the back side of the house of Baboo Lal and there was no necessity of climbing on the roof and then coming down in the chowk. Had they any intention to commit dacoity or to commit murder of these persons they would have come straight from the main gate which is just in front of their own houses. Had they any intention to commit murder they would not have given any chance for Siya Ram to close the main gate. All would have come easily from the main gate and would have murdered them. Then, according to the prosecution witnesses Gokul, Siyaram, Chandania and Samaria were inside the kotha when Ram Bharose, Bhikha and Shankar were murdered. The persons who murdered three persons could have murdered Gokal, Siyaram, Samaria and Chandania also. There was no question of leaving these four persons alive. The miscreants knew that their ghastly act has been witnessed by these four persons and they know them very well and these persons are eye-witnesses to this act, they would not have spared these four persons also. When they can murder three persons they could also murder these four persons, but not a single injury was inflicted to these four eye-witnesses. It was argued that Gokul was behind the kotha from where the witnessed the act of the accused persons. When Gokul can see from behind the kotha it cannot be believed that Gokul was not seen by the accused-appellants who fired in the kotha. They would have spared Gokul or Siyaram who were witnessing this act cannot be believed at all. It is also not believed that these four persons were present in the kotha and they were eye-witnesses to this act. This the story that accused-persons entered into the house from the roof of the house of Baboo is also unbelievable story. 19. They would have spared Gokul or Siyaram who were witnessing this act cannot be believed at all. It is also not believed that these four persons were present in the kotha and they were eye-witnesses to this act. This the story that accused-persons entered into the house from the roof of the house of Baboo is also unbelievable story. 19. Another important aspect is that from the very beginning the prosecution version is that 5 persons dressed in Khaki armed with gun were there. There 5 persons armed with gun said to be the members of gang of dacoit Dayaram. In the Parchabayam Ex. P 19, Gokul had stated that apart from these accused persons there were 5 persons armed with gun and wearing khaki dress. Baboo PW 6 has also stated that he saw 15-16 persons including appellants and 5 other persons armed with gun and dressed in khaki. So the 5 persons came at the house of Baboo Lal. During investigation the SHO could not find any case against those 5 persons and, therefore, no case was found to have been made against those 5 persons by the investigating Officer. This is the reason that no challan has been field against those 5 persons. Another aspect is that during the trial of the case an application was submitted by AAP before the trial court for issuing warrants against those 5 persons. That application was rejected by the learned trial court on the ground that those persons have not been named by anybody, those 5 persons have not been identified by any of the prosecution witnesses and there was no sense in issuing any warrant. So the prosecution tried to bring those 5 persons on record as accused persons but as three was no indication even during investigation against those 5 persons the application was rightly rejected by the trial Court and we also agree with this rejection of application. Thus according to the prosecution there were some other persons armed with gun and it is possible that house persons might have committed this murder. In the evidence of the prosecution witnesses they deposed that when ladies were collected in the chowk and accused persons told that the ladies be taken together and the will be sold in the market, then those 5 persons who were dressed in khaki rescued the ladies. In the evidence of the prosecution witnesses they deposed that when ladies were collected in the chowk and accused persons told that the ladies be taken together and the will be sold in the market, then those 5 persons who were dressed in khaki rescued the ladies. This story of rescuing ladies by those 5 persons is a made out story. Because the Investigating Officer could not investigate the case and could not found the identity of those 5 persons, the story was prepared that those 5 persons rescued the ladies of the complainant party in order to prove that actually those 5 persons are not murderers. So this story is not believable. This probably cannot be ruled out that these 5 persons might have committed this murder. On account of enmity, the appellant have been implicated in this case. All the appellants are members of one family and the enmity in obvious that Roopsingh brother of the accused Rajendra was murdered and the case is pending against the complainant party. So we found that the story as put up by the prosecution is not a correct story. 20. PW 1 Siyaram has stated that Ram Bharose, Shankar, Bhikha Gokul and himself had entered into the kotha of Baboo Lal, Rajendra Pappu, Munshi and Ramesh armed with gun entered into the kotha. Ramesh took out Shanker from the kotha of grain and fired at him. The fire hit on his chest and he died there. Rajendra fired at Ram Bharose who was inside the kotha of grain and Munshi then again fired at Ram Bharose. Bhikha was dragged by Pappu and when he cried Chandania, his mother, came in the kotha and prayed Pappu not to kill her son. Pappu did not agree and he fired at Bhikha who died on the aspect. He has also stated that Samaria was also inside the kotha of grain. While the appellants were firing in the kotha, Siyaram was order R. cot and he stated that he witnessed the entire incident from under the cot. His statement was recorded by Police during investigation which is Ex. P 1 and he was confronted with that statement. In the Police statement he had R. only stated that these persons entered into the gate and hide themselves. He has not stated that they hide themselves in the kotha of grain. In his Police statement Ex. His statement was recorded by Police during investigation which is Ex. P 1 and he was confronted with that statement. In the Police statement he had R. only stated that these persons entered into the gate and hide themselves. He has not stated that they hide themselves in the kotha of grain. In his Police statement Ex. D 1 he has not stated that Bhikha was hit with fire near 'Chakki' which has been stated in the Court statement. In the Police statement he has stated that he was sitting inside the house which he has denied in the Court statement. He was examined by the Police under section 161 Cr. PC. on 24-9-81. This incident took place on 22-9-81 and the report was lodged on 23-9-81, but he was not examined on that very day. The delay in examining this witness by the Investigation Officer has not been explained and this delay is fatal which gives this indication that the witness is an unreliable witness. So by reading the statement of Siyaram we find that he is an unreliable witness. 21. Sumaria PW 2 has given the statement of same as narrated by Siyaram PW 1. She has stated that she also entered in to the kotha of grain alongwith Ram Bharose, Pappu dragged her out of kotha and was made to stand there. She also stated that Chandania begged Pappu not to kill his son Bhikha. He was also examined by the Investigating Officer on 24-9-81. So her statement was also recorded with delay. In the Police statement Ex. D 2 she has not stated that she also entered into the kotha of grain. It is also not mentioned that she hide herself in the kotha of Baboo. In the court-statement she has stated that she entered into the kotha of grain which was in the kotha of Baboo. This shows that in order to create an eye-witness Sumaira PW 2 was introduced. She also stated that she was inside the kotha of grain. She has also not stated in the Police statement Ex. 2 that on account of fear all were living at the house of Baboo these she has stated in her examination-in-chief. This show that she is a made out witness and the entire story has been concocted. No reliance can be placed on such witness. 22. She has also not stated in the Police statement Ex. 2 that on account of fear all were living at the house of Baboo these she has stated in her examination-in-chief. This show that she is a made out witness and the entire story has been concocted. No reliance can be placed on such witness. 22. Gokul PW 3 has repeated the same statement, in his examination-in-chief, as stated by other prosecution witnesses. He has stated that he witnesses the entire incident while hiding himself behind the 'kotha' of grain. We have mentioned above that this statement of Gokul that he was witnessing the incident from the place hiding himself behind the grain-kotha in a false statement. Had it been of fact the accused-appellants would have noticed him and they would not have spared him alive. He was the eye-witness and witnessing the incident, he would not have been spared to appear as an eye-witness against the appellants. He would have been murdered first of all. So we don't believe the statement of Gokul that he was inside the room of Babu's and witnessing the entire incident. Therefore, this witness is also an unreliable witness. 23. Smt. Chandania PW 4 has also repeated the similar story in the examination-in-chief. She has also stated that all the ladies including Mst. Samaria were made to sit in the chowk. When they were sitting there they heard the sound of three gun shots coming from the kotha of Babu Lal. She also heard the cry of Bhikha who was uttering that he should not be killed then she ran to the room and told them not to kill her son. It means that she went inside the kotha after firing three gun shots. She could not have seen what had happened to other deceased Ram Bharose and Shankar. She has falsified the statement of Semaria PW 2. Samaira has stated that she was inside the kotha of grain alongwith Ram Bhaorse. Chandania PW 4 has stated that Samaria was sitting outside the kotha in the chowk alongwith other ladies. So the statement of Samaria that she was inside the room is a false statement and whatever she has stated that when she entered into the kotha and she found stated in the Court is also a false statement. Chandania PW 4 has stated that Samaria was sitting outside the kotha in the chowk alongwith other ladies. So the statement of Samaria that she was inside the room is a false statement and whatever she has stated that when she entered into the kotha and she found stated in the Court is also a false statement. Chandania has also stated that when she entered into the kotha she found Bhikha lying near Chakki Shanker lying in front of the kotha and Ram Bharose lying inside the kotha. It means that when she arrived in the room all the three persons had already been murdered. Gun-shot were fired prior to her arrival. She has also stated in the cross-examination that the other ladies were made to sit in the chowk. When the accused came outside the house after murdering three persons they collected in chowk all the ladies who were inside the house, then all the ladies were rescued. This shows that Chandania was in the chowk and she did not enter the kotha of Babu Lal where the dead bodies were lying. So her statement that she entered the kotha and prayed Bappu not to kill her son Bhikha is a false statement. She was examined by the Investigating Officer and her Police statement is Ex. D 3 and in that statement she has not stated that Bhikha was murdered near chokki, Shanker was murdered in front of the kotha and Ram Bharose was murdered inside the kotha of grain, but in the Court statement she has stated so in detail. She has also stated that when miscreants had gone away, she went inside the room and brought Siyaram and Gokul out telling them that miscreants had gone away. This shows that she was not inside the room when this occurrence took place. Thus she has disowned her own statement given in the Police which is Ex. D 3. From reading her statement, he find that she is also an un-reliable witness. 24. We have discussed the evidence of the so called eye-witnesses and on scrutining find that all these eye-witnesses are unreliable and untrustworthy witnesses. They have tried to improve their statement and tried to implicate the accused-appellants. No reliance can be placed on the testimony of such eye-witnesses. We, therefore, do not believe the statements of Siyaram PW 1, Mst. 24. We have discussed the evidence of the so called eye-witnesses and on scrutining find that all these eye-witnesses are unreliable and untrustworthy witnesses. They have tried to improve their statement and tried to implicate the accused-appellants. No reliance can be placed on the testimony of such eye-witnesses. We, therefore, do not believe the statements of Siyaram PW 1, Mst. Samaria PW 2, Gokul PW 3 and Chandania PW 4. 25. Thus in view of our discussion made above, was found that the prosecution has failed to prove this case beyond reasonable doubt. The witnesses are unreliable witnesses and on their testimony an offence under section 302 alleged to have been committed by ramesh, Pappu and Munshi has not been established. The learned Additional Sessions Judge did not appreciate the evidence in a proper manner and he had incorrectly arrived at the conclusion that Ramesh, Pappu and Munshi committed the murder of Ram Bharose, Shanker nad Bhikha. 26. The fact that the witnesses were not examined immediately by the Investigating Officer U/S/161 Cr. PC and the fact that the eye-witness are interested and enimical to the accused persons are the true and admitted facts. No independent eye-witnesses has been examined by the prosecution. The statement of interested witnesses are to be scrutinised cautiously and we have done that and we found that they are unreliable. So the prosecution has failed to prove the case against the accused persons. 27. As a result we found that the prosecution has failed to prove their case and the appellants Munshi, Pappu and Ramesh are not found guilty of the offence U/S/302 IPC, 395 and 148 IPC. The appellants Krishna is not found guilty of the offence U/S/302 read with 149, 436 and 395 IPC, accused Mahaveer is not found guilty of the offence under section 302 read with 149, 436 and 395 IPC. Appellant Rajveer and Pyarelal are not found guilty of the offence U/S/302 read with 149, 436 and 395 IPC. 28. As a result, both the appeals of the appellants are accepted. They are acquitted from the offences as held by the learned Additional Sessions Judge. The appellants Ramesh, Pappu and Munshi, Krishna, Mahaveer, Rajveer and Pyarelal are in jail. They shall be released forthwith, if not needed in any other case.Appeal accepted. *******