JUDGMENT 1. - This is an appeal against the judgment of Sri Babu Singh, Additional Sessions Judge No./, Hanumangarh dated' February 24, 1986 by which he convicted the accused-appellants under Section 302 read with Section 24, IPC and sentenced each to life imprisonment ana to pay a fine of Rs. 2,000/- and in default to further undergo rigorous imprisonment for two years for committing the murder of their grand father, Mukhtiyar Singh. The prosecution case may be summarised thus. 2. Gurutej Singh P.W. 1, uncle of the accused-appellants, lodged F.I.R. Ex. P. 1 in the Police Station, Shadulshahar (Sri Ganganagar) at 8.30 p.m on 29.8.83 against the accused-appellants thus Gurjant Singh, father of the accused-appellants, lives separately for last 25 years and he lives with his father, Mukhtiyar Singh, Gurjant Singh was duly given his share of land and house. His land is cultivated by his three sons namely; Jasvinder Singh, Daljeet Singh (accused-appellants) and Puran Singh as he is mad. For last 20 days, the accused-appellants started asking their grand father to give them land from his share and threatened to kill him if he refused to do so. In the morning, the accused Daljeet Singh come to their house and told his grand father that he has encroached upon his land and requested for the correct demarcation of the land of his share. He left for his house after Mukhtiyar Singh told him that he would correctly demarcate his share of land. He (Gurtej Singh) along with his father Mukhtiyar Singh and son Bhupendra Singh P. W. 2 left for his field situated in 14 M. J. D and started doing work there. In the meantime, the accused-appellants and their brother Puran Singh came there. After some time, Gurjant Singh s/o Jagar Singh and Jogendra Singh P. W. 4, also come there. Mukhtiyar Singh correctly demarcated the land of the accused-appellants. They were not satisfied and left for their field telling him that they would also take land from his share. At about 4.30 P. M., Mukhtiyar Singh left for the village. After 15 minutes thereof, the accused-appellants also proceeded towards the village with Kassiyas in their hands On it, he apprehended and followed the accused-appellants along with his son Bhupendra Singh P.W. 2. At about 4.30 P. M., Mukhtiyar Singh left for the village. After 15 minutes thereof, the accused-appellants also proceeded towards the village with Kassiyas in their hands On it, he apprehended and followed the accused-appellants along with his son Bhupendra Singh P.W. 2. At about 5.50 P. M., when his father Mukhtiyar Singh was near the field of Mallu Thakar, the accused-appellants pounced upon him and started inflicting injuries with their Kassiyas telling him that he was not giving land to them. Mukhtiyar Singh fell down on the ground due to his head injuries. On the hue and cry raised by him and his son Bhupendra Singh P. W 2, the accused-appellants ran away. His father was found dead when he saw him. He along with his son came running to the village and narrated the entire incident to Lala Thakar, Gurdev Singh and Jogendra Singh P.W. 4. They asked him to go to the Police Station to lodge a report any they themselves came to the place where dead body was lying. Accordingly, he came to the police station and lodged the report. The case was registered under Section 302/34, I.P.C. and the investigation was commenced. Site-plan Ex. P. 2, site inspection memo Ex. P. 2-A, memo of dead body Ex P. 3 and inquest report Ex, P. 4 were prepared on 30-8-83 A chhari, turban and a pair of chappals were found near the dead body and they were seized through the seizure memos Exs. P. 5, P. 6 and P. 7 respectively. Moulds were taken of the foot prints found near the dead body and memos. Exs. P. 6 and P. 9 were prepared. Blood stained mud was also taken along with ordinary mud and memos. Exs.P.10 & P.l 1 were prepared. The bloodstained clothes of the deceased were taken through memo Ex. P. 12 The postmortem examination of the dead body was conducted and the report Ex. P. 18 was prepared. The accused-appellants were arrested on 4.9.83. They gave information Exs. P.21 and P.22 under Section 27, Evidence Act and in pursuance thereof, they got recovered blood-stained axes Articles 1 and 2 and their clothes through memos. Ex P.18 and P.13. Moulds of their specimen foot prints were taken and the memos Exs. P. 23 to P. 24 were prepared. The accused-appellants were arrested on 4.9.83. They gave information Exs. P.21 and P.22 under Section 27, Evidence Act and in pursuance thereof, they got recovered blood-stained axes Articles 1 and 2 and their clothes through memos. Ex P.18 and P.13. Moulds of their specimen foot prints were taken and the memos Exs. P. 23 to P. 24 were prepared. All the seized articles were sealed and sent to the State Forensic Science Laboratory, Rajasthan, Jaipur in sealed condition On their chemical examination. 'B' group blood was detected on the blood smeared soil, chhari, chaddar and kurta of deceased and a Kassiya. After completing investigation, a challan was filed against both the accused-appellants under Section 302 read with Sec. 34. I.P.C. in the Court of the Judicial Magistrate No. 2, Hanumangarh, who committed them to the Sessions. 3. Charge under Section 302 read with Section 34, I.P.C. was framed against both the accused-appellants by the learned Additional Sessions Judge No. 2, Hanumangarh. None pleaded guilty and both claimed trial. The prosecution examined informent Gurtej Singh P.W. 1 and his son Bhupendra Singh P.W. 2 as eye-witnesses, attesting witness Bhagirath P.W. 3, Jogendra Singh P.W. 4 who witnessed the demarcation of land. Dr. Brij Bhushan Gupta P.W. 5 who conducted the postmortem examination of the deceased. Investigating Officer Jivan Lal P.W. 6, Constable Kewal Ram P.W. 7 who took the sealed packets to Forensic Science Laboratory, Jaipur and Head Constable Bhan Singh P.W. 8, who kept the sealed packets in the Malkhan of the Police Station and tendered and proved 33 documents. 4. The accused Daljeet Singh admitted in his statement recorded under Section 313, Cr. P.C. that on the day of occurrence, he along with his brother Puran Singh went to their field and Gurtej Singh P.W. 1 and deceased also came to their field. He also stated that Gurjant Singh and Jogendra Singh P.W. 4 also came there and his grand father left for home at about 1-2 P.M. The remaining parts of the prosecution story have been denied. He also stated that when he came back to his house at 7-8 P.M., his mother told him about the passing of his grand father. Accused Jasvinder Singh disclosed in his statement that on the day of the occurrence, he had gone to Hanumangarh town and returned at about 6 P. M. by bus. He also stated that when he came back to his house at 7-8 P.M., his mother told him about the passing of his grand father. Accused Jasvinder Singh disclosed in his statement that on the day of the occurrence, he had gone to Hanumangarh town and returned at about 6 P. M. by bus. He also disclosed that his uncle Gurtej Singh P.W. 1 was very much annoyed with them, he threatened his brothers as their grand father Mukhtiyar Singh got purchased land for them after selling the land of their grand mother and due to this enmity, he and his brothers have falsely been implicated in this case. They examined Gurjant Singh D. W. 1, Deputy Superintendent of Police Radheshyam Sharma D. W. 2 and Kuldeep Singh D.W.3 in their defence. After hearing the accused-appellants, the learned Additional Sessions Judge No. 2, Hanumangarh convicted and sentenced them as said above. 5. It has been contended by the learned counsel for the accused-appellants that Gurtej Singh P.W. 1 and his son Bhupendra Singh P.W. 2 did not in fact see the murder of Mukhtiyar Singh and they have come forward as eyewitnesses in order to falsely implicate the accused-appellants with whom they had enmity prior to the murder of Mukhtiyar Singh. He further contended that their statements are most unnatural, they are not supported by Dr. Brij Bhushan Gupta P.W. 5 and Jogendra Singh P.W. 4, there was no question of the presence of Bhupendra Singh P.W. 2 in the field, he was a student, his school was open on that day, his statement was also recorded on 1.9,83 without any explanation for the inordinate delay, F. I. R. Ex. PI was not immediately sent to the Magistrate as required under Section 157, Cr. P.C. and no explanation has been offered for the delay in sending it. He has further contended that the moulds of the foot prints found near the dead body of the deceased and also the moulds of the specimen foot prints of the accused-persons were taken but the disputed foot prints were not found to be of the accused-persons. P.C. and no explanation has been offered for the delay in sending it. He has further contended that the moulds of the foot prints found near the dead body of the deceased and also the moulds of the specimen foot prints of the accused-persons were taken but the disputed foot prints were not found to be of the accused-persons. He also contended that only one axe and one pair of clothes were found blood-stained clothes belonged and who got recovered the blood-stained axe, no independent witness has been examined, Gurtej Singh P.W. 1 and Bhupendra Singh P.W. 2 are most interested persons, Jogendra Singh P. W. 4 has not supported the prosecution case and no explanation has been offered for not examining Gurjant Singh, Lala Thakar and Gurdev Singh. He lastly contended that the learned Additional Sessions Judge did not delve deep in the prosecution evidence and seriously erred in placing implicit reliance upon the prosecution evidence. 6. In reply, the learned Public Prosecutor contended that the statements of Gurtej Singh P.W. 1 and Bhupendra Singh P.W. 2 are consistent, they are fully supported by other evidence, F.I.R. Ex. PI was lodged in the police station within three hours of the occurrence, it was sent to the concerned-Magistrate the next day without any delay, blood-stained axe and clothes were recovered at the instance of the accused appellants and the blood appearing on the axe tallied with the blood of the deceased Mukhtiyar Singh. He also contended that Gurtej Singh P.W. 1 had no reason to falsely implicate his own nephew and to leave the actual culprits. 7. Apparently, the statements of Gurtej Singh P.W. 1 and Bhupendra Singh P.W. 2 are consistent but consistency is not the only test of truth. The essential question whether the fact deposed to is true or false has to be determined not merely by the test of consistency but by whatsoever other tests may be available in the circumstances of a case. The following facts and circumstances deserve notice here;- (1) It is clearly stated in the F.I R. Ex- P 1 and also deposed Gurtej Singh P.W. 1 and Bhupendra Singh P.W. 2 that the accused-appellants inflicted injuries upon the deceased Mukhtiyar Singh with their Kassiyas. In the postmortem examination of the dead body of Mukhtiyar Singh, Dr. Brij Bhushan Gupta P.W. 5 noted the following stab wounds:- "1. In the postmortem examination of the dead body of Mukhtiyar Singh, Dr. Brij Bhushan Gupta P.W. 5 noted the following stab wounds:- "1. A stab wound of 1.5 cm X 1.7 cm X 2.0 cm. Present on Lt. cheek 8 cm. away from Lt. above of nose. 2. A stab wound of 1.5 cm.x 1.7 cm.X 8. 5 cm. Present on Lt. cheek adjacent to above injury. 3. A stab wound of 1.5 cm. X 1.7 cm X 2 cm present on Rt. cheek. 4. A stab wound of 1.5 cm. X 1.5 cm X 2 cm. present near acromian process of Rt. side of arm." Dr. Gupta has categorically stated that these injuries were also ante-mortem in nature and could not be caused by Kassiyas Articles 1 & 2. The prosecution has utterly failed to explain as to how these injuries were inflicted and who inflicted them. It is not the prosecution case that any of the accused was having any weapon with which such stab wounds could be caused. It is also not its case that some third person was present with such a weapon and he participated in the attach. (2) It is the prosecution case that a pair of Chappal belonging to one of the accused-persons was found near the dead body of Mukhtiyar Singh, it was taken into custody by the police and the memo Ex. P4 was prepared. No evidence of any kind was produced by the prosecution to prove that this pair of Chappal belonged to any one of accused persons. (3) It is well proved from the statement of the Investigating Officer Jiwan Ram P.W. 6 and the memos Exs. P8, P9. P23 and P24 that moulds of the foot prints appearing near the dead body of Mukhtiyar Singh were taken and also the moulds of the specimen foot prints of the accused-persons were taken. Admittedly, no report of an expert has been produced showing that the disputed foot prints tally with the specimen foot prints of any of the accused-persons. (4) It is stated in the F. I. R. Ex. PI and also deposed by Gurtej Singh P.W. 1 that after seeing the murder of his father Mukhtiyar Singh, he immediately came to the village and narrated the entire incident to Lala Thakar, Gurdev Singh and Jogendra Singh P.W. 4. (4) It is stated in the F. I. R. Ex. PI and also deposed by Gurtej Singh P.W. 1 that after seeing the murder of his father Mukhtiyar Singh, he immediately came to the village and narrated the entire incident to Lala Thakar, Gurdev Singh and Jogendra Singh P.W. 4. Out of these three persons, Jogendra Singh P. W. 4 only has been examined by the prosecution and he too has not supported the version of Gurtej Singh P. W. 1 Admittedly, Lala Thakar and Gurdev Singh have not been produced by the prosecution. No explanation has been offered for their non-production. (5) Gurtej Singh P.W. 1 says that he disclosed to the police the place where from he had his son Bhupendra Singh saw the murder of his father Mukhtiyar Singh. Admittedly, the site-plan Ex. P 2 and site inspection Ex. P2-A do not show the place wherefrom these witnesses saw the murder. (6) It is clear from the perusal of F. I. R. Ex. PI that the essential details of the attack by the accused-persons upon the deceased Mukhtiyar Singh have not been disclosed in it. It has not been stated at all in it as to how the deceased Mukhtiyar Singh reacted when the accused-persons belaboured him with their Kassiyas. It is stated in it that the accused-persons stated inflicting Kassiyas blows upon Mukhtiyar Singh telling him that he was not giving land to them and they would see him. Admittedly, it is neither mentioned in the F.I.R. Ex. PI nor stated by Gurtej Singh P.W. 1 and Bhupendra Singh P.W. 2 as to what utterances were than made by Mukhtiyar Singh. In the natural course, he must have made some utterances at that time. (7) It is neither mentioned in the F.I.R. Ex. PI nor stated by Gurtej Singh P.W. 1 and Bhupendra Singh P.W. 2 that any attempt was made by them to catch hold the accused-persons to save Mukhtiyar Singh from their deadly attack. It is clear from the postmortem report Ex. P13 that deceased received as many as 24 injuries. It has been stated in the F. I. R. and also disclosed by Gurtej Singh in his statement that he over-heard the accused-persons telling his father that he had not given his land to them and they would see him and, thereafter they stated inflicting blows with their Kassiyas upon him. P13 that deceased received as many as 24 injuries. It has been stated in the F. I. R. and also disclosed by Gurtej Singh in his statement that he over-heard the accused-persons telling his father that he had not given his land to them and they would see him and, thereafter they stated inflicting blows with their Kassiyas upon him. The infliction of 24 injuries must have taken some time. If Gurtej Singh P.W. 1 and Bhupendra Singh P.W. 2 would have actually been present, they would have rushed to save the deceased Mukhtiyar Singh from further attack. (8) It is stated in the F.I.R. Ex. PI that the deceased Mukhtiyar Singh started for the village at about 4.30 p.m., the accused-persons started after about 15 minutes thereof and the occurrence took place at about 5.30 P.M. Gurtej Singh P.W. 1 has disclosed in his cross-examination that his field was at a distance of about 4 miles from the village. The average speed of a man is about 4 miles per hour. It means, according to him, the deceased was belaboured by the accused-persons near the village. It is not according to site-plan Ex. P2. If the accused persons had intended to inflict injuries upon the deceased, they would have immediately followed him and would not have waited for 15 minutes. Gurtej Singh P.W. 1 also stated in the cross-examination that he stated chasing accused-persons after about 5 minutes of their start, apprehending that the accused-persons might injure his father. He admits that this fact was not disclosed in his police statement Ex. D1 and he could not offer any explanation for this material omission. (9) It is admitted by Gurtej Singh P.W. 1 in his cross-examination that his mother Mst- Dalip Kaur had 10 Bighas of land, it was sold, sale proceeds were given to the accused-persons and they purchased another land from this money. He also admits that his father Mukhtiyar Singh accompanied the accused-persons when they purchased the land out of the said sale proceeds. (10) It is admitted by Gurtej Singh P.W. 1 and Bhupendra Singh P 2 that no altercation took place between the accused-persons and Mukhtiyar Singh when the fields were measured and demarcations were affected. (11) Bhupendra Singh P.W. 2 disclosed his age to be 10 years at the time of the statement recorded on 1-8-84. (10) It is admitted by Gurtej Singh P.W. 1 and Bhupendra Singh P 2 that no altercation took place between the accused-persons and Mukhtiyar Singh when the fields were measured and demarcations were affected. (11) Bhupendra Singh P.W. 2 disclosed his age to be 10 years at the time of the statement recorded on 1-8-84. He admitted that he was reading in a school during those days, his school was open on that day and he had no work in the field. (12) Bhagirath P. W, 3 is the attesting witness of all the documents, i.e., Ex. P2 to Ex. PI6, prepared on different dates. In his cross-examination, the Investigating Officer Jiwan Ram P. W. 3 disclosed that he was not knowing him before the occurrence. On further cross-examination, he admitted that Bhagirath P. W. 3 stood as his surety in another case when bailable warrant was issued against him. It cannot, therefore, be said that Bhagirath P.W. 3 was an independent witness within the meaning of Section 100 (4), Cr.P.C., 1973. (13) It also seems to be highly improbable that Gurtej Singh P. W. 1 and Bhupendra Singh P.W. 2 left for the village leaving the dead body of Mukhtiyar Singh alone at the place of occurrence. (14) There is a great variance in between the F.I.R. & the statement of Gurtej Singh P. W. 1 on the point of motive. According to F.I.R. Ex. P.1, about 20 days before the occurrence the accused-persons asked the deceased to give some land from the land of his share and on his refusal they threatened him to murder. Gurtej Singh P. W. 1 does not say in his statement that the accused-persons threatened to murder the deceassed Mukhtiyar Singh. It is stated in the F. I. R. that just before the commencement of the attack, the accused persons told the deceassed that they would see as he was not giving land to them. The land has not been specified in it. In his statement Gurtej Singh P. W. 1 stated that immediately before the attack the accused persons told the deceased that they would see him as he was not giving the land of their share. (15) it is clear from the Chemical Examine is Report Ex. P. 25 that blood of the group of deceased was found on one Kasiya. In his statement Gurtej Singh P. W. 1 stated that immediately before the attack the accused persons told the deceased that they would see him as he was not giving the land of their share. (15) it is clear from the Chemical Examine is Report Ex. P. 25 that blood of the group of deceased was found on one Kasiya. It is not proved from the evidence on record whether the accused Jasvinder Singh or Daljeet Singh got recovered it. 8. In view of the aforesaid facts and circumstances, it would be highly unsafe to hold that the accused appellants committed the murder of their grand father Mukhtiyar Singh. As such the appeal deserves to be allowed. 9. In the result, the appeal is allowed. The accused-appellants are acquitted of the offence punishable under Section 302 read with Section 34, I.P.C. They will be released forthwith, if not wanted in any other.Appeal allowed/Appellants acquitted. *******