JUDGMENT 1. - This appeal is directed against the judgment dated 29/7,/85 passed by the Sessions Judge, Jhunjhunu by which the appellant has been found guilty of the offence under section 302 I.P.C. and sentenced to undergo life imprisonment and a tine of Rs. Iu0/- and in default of payment of line to further undergo one month R.1. 2. According to the prosecution story Phoolchand lodged a written report on 31/7/84 at Police Station, Pilani stating that his brother Ratan Lal was engaged in milk business and used to supply milk at Pilani after its collection from the village. He used to take milk from Chiranjilal's house also, it has been further mentioned that about one and a half months prior to the alleged incident, lists blows were exchanged between Chiranjilal and his brother on the allegations that formers wife has been teased by the latter and so he would not spare him. It was further alleged that on this evening at about 6.30 p.m. while he was milking he heard some noise in the lane in front of the house of Mali Ram Slo Kalu Ram, he came running from his house, his brother Ratan Lal was lying on the ground in the lane of front of the house of Mali Ram and Chiranjilal was striking knife blows six to seven times constantly. His uncle Tara Chand also came running from the front lane and when he reached there Chiranjilal took to heels. His brother sustained knife blows on face, abdomen, head and right exila and died a little later. On this report the Police registered a case under section 30. I.P.C. 3. Shri Ransingh, the S. H. 0., inspected the site and prepared the site plan Ex. P. 6. He prepared inquest memo which is Ex. P. 7. Doctor Somdutt Chaudhary conducted the post-mortem on the dead dody and the post-mortem report is Ex. P. 2. The doctor found seven injuries on various parts of the body and according to him. the cause of death was severe shock because of severe haemorrhage from main blood vessels and injury to vital part lung. The accused was arrested on 1-8-84 vide arrest memo Ex. P 13. The S. H. O. seized the pant which the appellant was wearing vide memo Ex. P. 15. the cause of death was severe shock because of severe haemorrhage from main blood vessels and injury to vital part lung. The accused was arrested on 1-8-84 vide arrest memo Ex. P 13. The S. H. O. seized the pant which the appellant was wearing vide memo Ex. P. 15. He also recovered blood stained knife and also seized blood stained baniyan of the appellant on the information of the appellant. The seized articles were sealed and were sent to Chemical Examiner and the report of the Chemical Examiner is Ex. P. 18. According to this report the articles were stained with human blood but he could not determine the blood-group as it was disintegrated. After completing the investigation, the Police submitted challan against the appellant. 4. The learned Sessions Judge framed charge under section 302 1. P. C. The accused pleaded not guilty and claimed trial. The accused appellant denied all the allegations and stated that on 1-8-84 after his arrest, he was taken out from the look-up in the night and was beaten by 'danda', by which he received 3-4 injuries. The blood come out from the injuries, his baniyan and pant were smeared with his own blood and in this case he has been falsely implicated. 5. The learned counsel for the appellant argued that the accused was arrested on 1-8-84 but the pant was seized on 3.8-84. The accused was wearing this pant on 1-8-84 when he was arrested. Why the Police seized this pant on 3-8-b4 '? This creates doubt in the recovery of pant. It was also argued that the recovery of knife at the instance of accused is also doubtful and from the evidence, it is clear that knife was planted and this recovery is a planted one. it was also argued that the only evidence on behalf of the prosecution is of Phool Chand PW 5 who is the real brother of the deceased and Tarachand PW 4 who is uncle of the deceased. The prosecution has only examined these two relative witnesses, There were so many persons who collected at the spot but the prosecution has not examined any independent witness. The place where the incident had taken place is surrounded by the residential houses. It cannot be believed that nobody came there when this incident had taken place. The prosecution has only examined these two relative witnesses, There were so many persons who collected at the spot but the prosecution has not examined any independent witness. The place where the incident had taken place is surrounded by the residential houses. It cannot be believed that nobody came there when this incident had taken place. Even from the statement of Tarachand PW 4, there were number of children who were running at that time but none of those children has been examined by the Police. So the argument is that on the basis of relative and partisan witnesses it is unsafe to convict the appellant. 6. It was also argued by the learned counsel for the appellant that the site-plan was prepared by the S.H.O. which is Ex. P 6 but it has not been shown where the witnesses Tarachand and Phoolchand were standing. According to prosecution Tarachand PW 4 had witnessed this incident from the path which is at some distance from the place of incident and just in front of the house of Moongaram. But in the site-plan Ex. P 6 it has not been mentioned that at which place Tarachand was standing and from where he had seen this incident. In support of his argument he has cited (1) 1985 Cr. Law Report (Raj.) 18. 7. It was also argued that the presence of Tarachand PW 4 was not natural. He was playing cards along with Maliram, Rant Chandra and others. Without any business Tarachand came to the site. He is, therefore a chance witness. There is no corroboration to his statement that he was playing cards. Mali Ram, Ram Chandra and others who were playing cards with Tarachand. have not been examined by the Police. It was also argued that the statements of Tarachand PW 4 and Phoolchand PW 5 are unreliable, and contradict each other and no reliance can be placed on their testimony. According to these witnesses deceased Ratanlal was lifted by them and brought to the house. Blood was coming out from the injuries of Ratanlal. It means that the clothes of Phoolchand and Tarachand must have been smeared with blood of Ratanlal. The Police did not seize the clothes of Phoolchand and Tarachand which would prove their pensions. This is also a lacuna which has been left by the prosecution during investigation. Blood was coming out from the injuries of Ratanlal. It means that the clothes of Phoolchand and Tarachand must have been smeared with blood of Ratanlal. The Police did not seize the clothes of Phoolchand and Tarachand which would prove their pensions. This is also a lacuna which has been left by the prosecution during investigation. The witnesses were not examined by the Police during investigation on the same day and this also creates doubt in the story stated by these witnesses. 8. After going through the record of this case we find that Tarachand PW 4 and Phoolchand PW 5 are the only eye-witnesses and material witnesses in this case. Both these witnesses are close-relatives of the deceased. The principle of law is very clear that the evidence of interested and relative witness should be scrutinised carefully. As such, we have minutely examined and gone through the statement of these two witnesses. 9. This is a forceful argument that the prosecution did not examine independent witness Tarachand PW 4 has admitted in the cross-examination that neighbours i. e. men and women had collected there. He has also stated that there were a number of children at the spot and they ran away when he arrived there. It means that apart from Tarachand PW 4 there were other independent persons who had witnessed this incident. None of these persons has been examined by the Police. The S.H.O Ramsingh PW 8, in the cross-examination. has stated that it is incorrect that intentionally he recorded the statement of relative witnesses only. According to him he had investigated from When the independent witnesses were examined during investigation, why they were not examined in the Court. Th= non-examination of independent witnesses gives an adverse inference against the prosecution. Therefore, this aspect that independent witnesses have not been examined goes against the prosecution and it creates doubt in the correctness of the story. The learned Public Prosecutor could not explain why the independent witnesses were not examined. As such the argument in this respect advanced by the learned counsel for the appellant has force. 10. According to Tarachand PW 4 he was playing cards at the well along with Mali Ram s/o Kalu Ram, Ramchandra and 10-15 persons. According to him that well is about 100 feet away from the place of incident. The S.H.U. did not show the well in the site-plan Ex. 10. According to Tarachand PW 4 he was playing cards at the well along with Mali Ram s/o Kalu Ram, Ramchandra and 10-15 persons. According to him that well is about 100 feet away from the place of incident. The S.H.U. did not show the well in the site-plan Ex. P. 6. He did not mention the place from where the witness Tarachand had witnessed this incident. This is a great infirmity which creates serious doubt in the prosecution story. It was the duty of the S.I.O. to show in the site-plan the place where the witness was standing and from where he had witnessed the incident. The law cited by the learned counsel for the appellant, 1985 Cr. L.R. (Raj ) 18 helps the learned counsel for the appellant in this respect. In this case it has been observed as under: "In site-plan Ex. P 13 and inspection memo Ex. P 12 it has not been mentioned as to where this witness was standing when the incident took place and from which place he had seen the incident taking place. This is serious infirmity and again persuade us to hold that the witness was not present near about the place of occurrence. 11. It is not disputed that Tarachand PW 4 has no house near the place of incident. How he came there has not been explained. The statement of Tarachand is that while playing cards he felt necessity to take tea and so he was going to his house. It is not on the record that the way to the house of Tarachand is through the place of incident. Tarachand came in front of the house of Moongaram and he saw that accused-appellant inflicted six or seven knife blows to Ratan Lal deceased. Thus, it is clear that Tarachand PW 4 is a chance witness. His testimony could be corroborated by examining those persons who were playing cards with him at the well but none of them has been examined. Therefore, there is no corroboration to the statement of Tarachand that he was playing cards at the well and has come to the place of incident. Thus the presence of Tarachand becomes doubtful. 12. Tarachand PW 4 has stated that he saw in front of the house of Miliram that Ratanlal was lying on the ground and Chiranjilal was inflicting blows. He inflicted 6-7 blows. Thus the presence of Tarachand becomes doubtful. 12. Tarachand PW 4 has stated that he saw in front of the house of Miliram that Ratanlal was lying on the ground and Chiranjilal was inflicting blows. He inflicted 6-7 blows. He witnessed this incident from a distance of 20-25 feet and he ran towards the place of incident and at that moment Phoolcband was also running from the western side. In the cross-examination he has stated that he saw some children running from the place of incident but he did not hear any hue and cry of these children. Phoolchand PW 5 has stated that he was at his house when he heard cry of children "Mar Diya" "Mar Diya". After he,.ring this he ran and came in the chowk in front of the house of Maliram and saw that Chirnajilal was inflicting knife blows to Ratanlal. He has also mentioned the places where the blows were inflicted. When he reached near Ratanlal, his uncle Tarachand also came from western side. He and Tarachand both reached at the spot together. It means that when children cried ' Mar Diya Mar Diya", then Phoolchand PW 5 came to know and he came on the spot. His statement that after his arrival Chiranjilal inflicted 6-7 blows is a false statement. When the blows were inflicted the children cried Mar Diva Mar Diya and after hearing that cry Phoolchand PW 5 came to the spot. So infliction of knife blows was over before his arrival. Tarachand PW 4 has not stated that children raised hue and cry. He Chas not stated that he and Phoolchand both arrived at the place of incident together. He h.+s not stated that he came from the western side. According to him he was cumming from southern side. Therefore, the difference in the statements of both these witnesses indicates that both are unreliable witnesses. As Tarachand PW 4 is uncle and Phoolchand PW 5 is real brother of the deceased, they have stated as asked by the Police. Actually, both these witnesses have not witnessed the incident. 13. Tarachand PW 4 who has stated that he witnessed this incident from a distance of 20-25 feet but this fact has not been mentioned in his Police statement Ex. D. 1. Similarly, according to him he lifted Ratan Lal who was bleeding and brought him to the house. Actually, both these witnesses have not witnessed the incident. 13. Tarachand PW 4 who has stated that he witnessed this incident from a distance of 20-25 feet but this fact has not been mentioned in his Police statement Ex. D. 1. Similarly, according to him he lifted Ratan Lal who was bleeding and brought him to the house. But this statement has not been given in his Police statement Ex. D1. This shows that improvement has been made in the statement of Tarachand PW 4. He has also stated in the cross-examination that Police arrived at the spot the same day and he was present when Police came there. His statement under Section 161 Cr. P. C. was recorded on next day. He has specifically stated that he was not interrogated by the Police on the same day of incident. When Tarachand PW 4 was present at the spot and Police arrived there, why his statement was not recorded that very moment. Why his statement was recorded on next day? The prosecution has not explained this delay. Recording the statements of witnesses after delay creates doubt in the testimony of the witnesses. 14. We are supported by Ganesh Bhawan Patel and another v. State of Maharashtra AIR 1979 SC 135 . In this case their Lordships have observed as under : "Delay of a few hours, simpliciter, in recording the statements of eye-witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. Thus under the facts and circumstances of the case delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. Normally. in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses." 15. Tarachand PW 4 has stated that he witnessed this incident from the place which is in front of the house of Moonga Ram. Tarachand PW 4 has stated that he witnessed this incident from the place which is in front of the house of Moonga Ram. This spot is on the southern side of the place of incident The house of Ratanlal and Phoolchand is on the western side which has been shown at No 7 in the site-plan Ex. P. 6. The statement of Tarachand is that he saw katanlal coming from his house from his house. This statement is not correct because from the place from where he had witnessed this incident, the house of Ratanlal and Phoolchand is not visible. Then this is clear from his statement also that Phoolchand came running from his house. When Phoolchand came is clear from his own statement. When Phoolchand heard the cry of the children "Mar Diya Mar Diya" he came from his house and when he came at the circle shown in Ex. P. 6, Tara Chand PW 4 also arrived there and then both reached together at the place of occurrence. So this difference cannot be reconciled. It is clear that both Tarachand and Phool Chand are made out witnesses. None of them was present when this occurrence took place. 16. According to prosecution the accused Chiranjilal gave information for the recovery of knife and that information is Ex. P. 20. Chiranjilal gave information to got the recovery of knife and also of baniyan which was smeared with blood. This information was recorded by S.H.O. and no motbir was present at that time. This is also strange that information given by the accused has not been recorded in the presence of the motbirs. Such document can be created at any time. Then according to this information the knife was hidden inside sand in the 'Kotha' and that too near the southern wall. Ex P. 17 is the recovery memo of knife and according to this memo the knife was found inside the Kotha towards northern wall. So this recovery is not according to the information Ex. P. 20 given by the accused. Ramchandra PW o is the motbir of recovery of knife. Another motbir was Maliraui. The prosecution has not examined this Maliram but has only examined Ramchandra PW.r. Ramchandra is the real brother of Tarachand PW4. So this recovery is not according to the information Ex. P. 20 given by the accused. Ramchandra PW o is the motbir of recovery of knife. Another motbir was Maliraui. The prosecution has not examined this Maliram but has only examined Ramchandra PW.r. Ramchandra is the real brother of Tarachand PW4. He has stated that in the room, he saw pile of sand near the northern wall and from that sand the knife was taken out. This statement is contrary to the information as we have mentioned above. So the recovery of knife and baniyan is doubtful. Why the independent witness Maliram was not examined, has not been explained. 17. The S.H.O. recovered one pant of the accused-appellant on 3.8.84 vide memo Ex P. 15. The accused was arrested on 1,8.84 vide Ex P. 13. At the time of arrest the accused was wearing the pant and it has not been mentioned in the arrest memo that the accused was wearing pant smeard with blood. It cannot be believed that at the time of arrest the S.H.O. could not have noticed that the pant which the accused was wearing was smeared with blood. Then, on 3-8-84 when accused was in custody of the Police, the S.H.O. found that his pant was smeared with blood and the pant was recovered. This recovery is a strange recovery. The accused's contention is that after his arrest be was beaten by the Police in the lock-up. On account of his beating blood came out and his pant and baniyan were smeared with that blood. This contention of the accused is probable and seems to be correct one. Had the pant had blood on it, the S. H. O. would have seized it on 1/8/84 when the accused was arrested. The seizure of the pant on 3;8/84 itself indicates that the pant was not smeared with blood when Chiranjilal accused was arrested on 1/8/84. Therefore, the recovery of pant is a false recovery and we have no hesitation to say that it is a concocted recovery. 18. The report of Chemical Examiner is of no value. The opinion is that the articles had human blood. There is no blood-grouping as it was dis-integrated. According to accused's contention baniyan and pant have their own blood. Therefore, the recovery of pant is a false recovery and we have no hesitation to say that it is a concocted recovery. 18. The report of Chemical Examiner is of no value. The opinion is that the articles had human blood. There is no blood-grouping as it was dis-integrated. According to accused's contention baniyan and pant have their own blood. The knife might have human blood but it was for the prosecution to prove that the blood on the knife and on the clothes of accused was of the same group as of deceased Ratanlal. As there is no proof to this effect, the report of the Chemical Examiner is of no value. 19. In view of our above discussion, we are of the opinion that the witnesses Tarachand PW 4 and Phoolchand PW 5 are most unreliable and untrustworthy witnesses. Both these witnesses are close relative of the deceased and after scrutinising their testimony we have no hesitation to say that both these witnesses are not truthful witnesses. The prosecution has failed to establish its case beyond doubt. The prosecution has failed to examine independent and material witnesses. The infirmity while preparing the site-plan Ex. P 6, as we have mentioned above, also creates suspicion in the correctness of story. The learned Sessions Judge has not appreciated this aspect correctly and we are unable to agree with the finding arrived at by the learned Sessions Judge. 20. As a result, the appeal is accepted. The appellant Chiranjilal is not found guilty of the offence under section 302 P. P. C. and is acquitted. The accused is in jail. He be set at liberty forthwith, if not required in any other case.Appeal accepted. *******