JUDGMENT 1. - Both these appeals are directed against the judgment of Additional Sessions Judge No. 5, Jaipur City, Jaipur, dated 16th, June, 87 and hence, they are being disposed of by this common judgment. Accused-appellant Shekhu has been found guilty of offence u/s. 302, IPC, while appellant Ashok has been convicted u/s. 302/34, IPC; and both the appellants have been sentenced to imprisonment for life, and a fine of Rs. 1,000/-, and in default of payment of fine, to further undergo 1 month's rigorous imprisonment. 2. One Babulal PW 1, submitted a written-report on 20th Nov., 85, at PS - Sadar, Jaipur, alleging that on that day, he himself and Rajendrasingh (deceased) had gone to meet Nawab Bhai on a bycycle, for the purpose of getting the dispute settled in between Rajendrasingh and Shekhu, amicably and that, after talking to Nawab Bhai at 'Maan Industries', while they were returning, appellant Shekhu and another boy called them near the Ram Mandir, in Loco-Colony. They stopped near the railway-quarters. Accused Shekhu was having a knife. Both Shekhu and the other boy came running towards them. Rajendrasingh was caught hold of by the other boy, while Shekhu gave him knife-blows. After having knife-blows. Rajendrasingh, however, ran away, being chased by Shekhu, who again inflicted knife-blows to him. Rajendrasingh was taken to SMS Hospital in an auto-rickshaw, where, he was declared as dead. Babulal also mentioned in the report that he could identify the other boy, if he is brought before him. 3. On this report, a regular FIR was registered by the investigating officer, who inspected the site and prepared the site-plan (Ex. P. 3) and a Panchayatnama of the deadbody. Post-mortem examination on the deadbody was conducted by Dr. Vivekanand PW 17; and the post-mortem report is Ex. P. 33. In the opinion of the doctor, Rajendrasingh (deceased) had four stab-wounds, one incised wound and one abrasion. In his opinion, the mode of death was shock brought about as a result of injury to the vital part, i.e., abdominal aorta, as mentioned in the postmortem report. The said injury No. 2 alone, was sufficient in the ordinary course of nature to cause death. The accused (Shekhu) was arrested on 21st Nov., 85, who then gave information u/s. 27 of the Indian Evidence Act for recovery of one knife. The said information having been reduced into writing is Ex. P. 28. The said injury No. 2 alone, was sufficient in the ordinary course of nature to cause death. The accused (Shekhu) was arrested on 21st Nov., 85, who then gave information u/s. 27 of the Indian Evidence Act for recovery of one knife. The said information having been reduced into writing is Ex. P. 28. On the basis of this information and at the instance of accused Shekhu, the knife was recovered vide recovery-memo (Ex. P. 12). 4. After completing usual investigation, the police submitted a challan against both the appellants. 5. The Additional Sessions Judge framed charge against Shekhu u/s 302, and as against Ashok u/s. 302/34, IPC. Both the accused pleaded not guilty and claimed trial. 6. The prosecution examined 17 witnesses to establish its case. The accused persons denied the allegations made against them by the prosecution witnesses, and their contention was that on account of enmity, they have been falsely implicated in this case. In their defence, the accused persons examined one witness. 7. The learned Additional Sessions Judge, after concluding the trial and hearing both the sides, found that the case was established against both the accused persons, and so, he convicted and sentenced each of them as mentioned above. 8. The learned counsel for accused-appellant Shekhu argued that in this case, Babulal PW1 and Premnath PW5 are the only witnesses against the appellants. The other witnesses, namely, Shyamsunder PW 8 and Nawab PW 14, who according to the prosecution, are the eye-witnesses, have not supported the prosecution story. It was also argued that Premnath PW 5 is a made out witness, and so, his testimony is unbelievable. So, the solitary statement that remain is of Babulal PW 1 But, according to the learned counsel, the statement of this witness too is not of sterling worth, and so, no conviction can be passed on his testimony. It was then argued by him that the entire evidence against accused Shekhu is that of recovery of the knife (Art. 1). According to the learned counsel, though the recovered knife, on chemical examination, has been found to have contained `A' group blood on it, and the clothes of the deceased also had contained blood of `A' Group, but, in view of the medical evidence, the knife cannot be connected with the crime in this case. According to the learned counsel, though the recovered knife, on chemical examination, has been found to have contained `A' group blood on it, and the clothes of the deceased also had contained blood of `A' Group, but, in view of the medical evidence, the knife cannot be connected with the crime in this case. It was also argued by the learned counsel that the recovery of the knife (Art. 1) is a tainted one, and so, no conviction can be based on such a recovery. 9. Mr. Suraua, the learned counsel for accused Ashok argued that appellant Ashok has been wrongly convicted u/s. 302/34, IPC, and that there is no evidence to show that Ashok accused had any enmity with Rajendrasingh (Deceased) - no overt act has been assigned to this accused. According to the learned counsel, he was not armed with any knife, and that the only evidence against him is that he had given fist-blow to Rajendrasingh and had caught hold of him, while Shekhu was inflicting knife blows to him. So, his argument is that no case is made out against Ashok. 10. On the other hand, the learned Public Prosecutor and the learned counsel for the complainant argued that the statement of Babulal PW1 is of sterling worth, and that on his sole testimony, conviction has been rightly passed by the learned Additional Sessions Judge. It was also argued by him that Babulal had no enmity with the accused persons, and that nor had he close friendship with Rajendra singh (deceased). So, according to them, there is no question to disbelieve the testimony of Babulal PW 1. 11. We have heard the arguments advanced by all the learned counsel, perused the judgment of the trial court, and also have gone through minutely, the entire prosecution evidence. 12. According to the FIR (Ex. P. 1) Babulal PW1 and Rajendrasingh (deceased) had gone to Nawab Bhai for the purpose of getting the dispute settled between Rajendrasingh and accused Shekhu. 13. PW 4 Sualal, who is father of Rajendrasingh (deceased), has stated in his cross-examination that there was no friendship between his son Rajendrasingh (deceased) and Babulal PW 1. He has also stated that Babulal never used to come to his house. 14. 13. PW 4 Sualal, who is father of Rajendrasingh (deceased), has stated in his cross-examination that there was no friendship between his son Rajendrasingh (deceased) and Babulal PW 1. He has also stated that Babulal never used to come to his house. 14. So, in view of the fact that Babulal PW 1 was not a close friend of Rajendrasingh (deceased) and that he never used to visit the house of the latter, we fail to understand as to why Babulal had accompanied Rajendrasingh to Nawab Bhai to settle the dispute. It could be believed if only Babulal happened to be a close friend of Rajendra Singh and he had such close relations with him that he used to visit his house - then only, one could imagine that he (Babulal) would accompany Rajendrasingh to Nawab Bhai, to settle the dispute. 15. Apart from this, Sualal PW 4 who is the father of the deceased, has stated that there was some dispute between Rajendrasingh and Shekhu accused, and that some dispute had taken place on 1st Nov., 85, but that was got settled by Nawab Bhai. So, when the dispute was already settled, and there is nothing on the record to show that after 1st Nov., 85, there was any further dispute between Rajendrasingh and accused Shekhu, where was the necessity to go to Nawab Bhai for getting the dispute settled? Even if for the sake argument, it is believed that there was dispute between Rajendrasingh and Shekhu, then too, Babulal PW 1 was not the proper person to accompany Rajendrasingh, because, Babulal did not know Nawab Bhai, and even if we read the statement of Nawab Bhai PW 14, we find that the entire story of compromise, is a concocted one. Nawab Bhai has not supported the story of compromise. He has not stated that Rajendrasingh had come to him to get some dispute settled. More-over, he has stated that he did not know Babulal PW 1. According to Nawab Bhai PW 14, on 20th Nov.,'85, Rajendrasingh had met him at about 3.30 PW at his factory, and he had told him about the dispute with Shekhu. At this, he had told Rajendrasingh that if his father would come to him, he would get the dispute settled. According to Nawab Bhai PW 14, on 20th Nov.,'85, Rajendrasingh had met him at about 3.30 PW at his factory, and he had told him about the dispute with Shekhu. At this, he had told Rajendrasingh that if his father would come to him, he would get the dispute settled. So, this witness has not stated that Rajendrasingh and Babulal both had come to him at about 5-5.30 PW on 20th Nov., 85, for settling some dispute. 16. Another aspect to be kept in mind is that if any compromise was to be arrived at, then, that was between Rajendrasingh and Shekhu; and no settlement could be arrived at singly. If Nawab Bhai was to get done a settlement, he would call Shekhu also, and in presence of Rajendrasingh and Shekhu both, compromise could be arrived at. Therefore, the entire story of settlement of dispute, appears to be a concocted one. When the dispute had already been settled, as stated by Sualal PW 4, the father of Rajendrasingh, where was the necessity of any further compromise? There is no other evidence with regard to compromise, and the only evidence, as alleged by the prosecution is that of Nawab Bhai PW 14, who does not support the story of prosecution. We, therefore, do not believe the story of compromise; and indirectly, it reflects on credibility of Babulal PW 1. 17. We have read the statement of Babulal PW 1 very minutely, who, in his examination-in-chief, has stated that Shekhu had taken out a knife and inflicted two knife-blows to Rajendrasingh one, on his buttock and the other on his back, and that thereafter Rajendrasingh had run away, and Shekhu and Ashok both had chased him - Ashok had caught Rajendrasingh, and then, Shekhu had inflicted one knife blow on his neck. Then, according to this witness, Rajendrasingh had run further, and then, in front of Quarter No. A-128, which was of one Shyamsunder. Rajendrasingh had fallen down on the ground. In the report (Ex. P. 1), this witness did not state that Shekhu had taken out his knife from his pocket, but, in his court statement, he has made this improvement. Then, in his cross-examination, he has admitted that they had seen Shekhu taking out the knife from his pocket, but from some distance. This witness and Rajendrasingh were on a bycycle. P. 1), this witness did not state that Shekhu had taken out his knife from his pocket, but, in his court statement, he has made this improvement. Then, in his cross-examination, he has admitted that they had seen Shekhu taking out the knife from his pocket, but from some distance. This witness and Rajendrasingh were on a bycycle. So, after seeing that Shekhu was coming forward, and when they had all apprehension that he would inflict injuries to them they could have run away on the bycycle. But, the conduct of this witness and Rajendrasingh was that they remained standing there, and permitted Shekhu to come to them and inflict knife-blows to Rajendrasingh. This conduct shows that Babulal PW 1 is a unreliable witness. He has also stated that there were number of quarters near the place of the incident, but, he did not raise any hue and cry at the time of the occurrence. This conduct of Babulal PW 1 was also unnatural. When he had seen that Rajendrasingh was being inflicted knife-blows, the first step for him was to raise an alarm. But, he even did not try to save Rajendrasingh. In court, he was confronted with his police-statement (Ex. D. 2), wherein at portion, A to B, he stated that one knife-blow was inflicted on the neck of Rajendrasingh, in front of Quarter No. A-128. But, he denied to have given that statement in the police. So, there are contradictions in the statement of Babulal PW 1 with regard to the injuries inflicted to Rajendrasingh (deceased) by Shekhu accused. 18. Nawab Bhai PW 14 used to reside at Hassanpura, where Rajendrasingh also used to reside. So, if any settlement was to be done through Nawab Bhai, that could have been done at the residence of Nawab Bhai where was the necessity of going to Maan Industries, for the purpose, and that too when Shekhu was not present there? So, this fact also indicates that Babulal PW 1 is a made out witness. It cannot be denied that Rajendrasingh died on account of the injuries received by him, but, how those injuries were caused, who were the assailants, and where the incident had occurred, are the facts which are to be proved and established by the prosecution. So, this fact also indicates that Babulal PW 1 is a made out witness. It cannot be denied that Rajendrasingh died on account of the injuries received by him, but, how those injuries were caused, who were the assailants, and where the incident had occurred, are the facts which are to be proved and established by the prosecution. In this respect, the statement of Babulal PW 1 is the solitary one, and after going through his entire statement, we are of the opinion that he is a most unreliable and untrustworthy witness. We find no other evidence on record, to support the prosecution story. After going through the entire statement of Babulal PW 1 and looking to the site-plan (Ex. P. 3), we are of the opinion that Babulal could not have seen the incident of infliction of knife-blows near quarter No. A-128, nor could he have seen the third blow which was inflicted to Rajendrasingh, after his running away from the spot, where the two blows had been inflicted to him. Rajendrasingh had run towards the Kachcha road, while Babulal PW 1 had run along the main road, and in between the two roads, there were number of quarters, so, what was happening on the Kachcha road behind the quarters, could not have been seen by Babulal PW 1. 19. All these indicate that Babulal PW 1 is a false and made out witness. 20. Regarding Premnath PW 5, Mr. Tiwari, the learned counsel for the complainant, has frankly conceded that he is not a reliable witness. After reading his statement, we are of the opinion that he is also another made out witness. This witness, after seeing the incident, did not talk to Babulal PW 1. He has stated that he had not narrated the incident to anybody else. In his cross-examination, he has admitted that his statement was recorded by the police u/s. 161, Cr. P. C., after four days. Who gave the name of Premnath is not known. Babulal PW 1 had not talked to Premnath, nor has he stated that Premnath had also witnessed the incident. Who had taken Premnath to police and informed that he was also an eye-witness to the occurrence, is not clear from the evidence on record. P. C., after four days. Who gave the name of Premnath is not known. Babulal PW 1 had not talked to Premnath, nor has he stated that Premnath had also witnessed the incident. Who had taken Premnath to police and informed that he was also an eye-witness to the occurrence, is not clear from the evidence on record. Therefore, it is clear that Premnath PW 5 is also another made out witness, who was, also tutored and prepared to corroborate the statement of Babulal PW 1. Hence, in our opinion, Premnath PW 5 is also an untrustworthy witness. 21. We have read the evidence regarding the recovery of knife (Art. 1). After his arrest, accused Shekhu gave information for recovery of a knife which is Ex. P, 28. On the basis of the said information and at the instance of accused Shekhu, the knife was recovered vide Memo (Ex. P. 12), from the house of Mst. Shakuri. The house from where the said knife was recovered, was not the house of Shekhu. In that house, his aunt Mst. Shakuri used to reside. The incident occurred on 20th Nov., 85. The accused was arrested on 21st Nov., 85. But, he gave information on 22nd Nov., 85 for recovery of the knife. It means that after committing the offence, Sekhu had gone to the house of Mst. Shakuri, and he had kept the knife in the almirah inside the room at the house of Mst. Shakuri, his aunt. The knife was smeared with blood. So, it cannot be believed that Shekhu, after committing the crime, would not wash the knife and keep in the almirah with blood-stains on it. Such an act, cannot be expected of an offender, who, certainly, after committing the offence, would first wipe out the blood - stains from the knife, and for that, he would wash it, so that, there may not be any doubt or trace about the commission of the offences. Shekhu accused in this case, had sufficient time to wash the knife. 22. Another aspect is that according to the doctor's statement, the stab-wounds were clean-cuts. It means that the weapon used for inflicting the injuries, was of double edges, because, only when a double-edged weapon is used for inflicting injuries, clean-cuts are found. The knife (Art. 1) recovered in this case, was shown to the doctor, PW 17 Dr. 22. Another aspect is that according to the doctor's statement, the stab-wounds were clean-cuts. It means that the weapon used for inflicting the injuries, was of double edges, because, only when a double-edged weapon is used for inflicting injuries, clean-cuts are found. The knife (Art. 1) recovered in this case, was shown to the doctor, PW 17 Dr. Vivekanand, and he stated that the injuries could be caused by that knife. He has admitted that the edge of knife (Art. 1) was blunt on one side, and sharp on the other. We thus fail to understand as to how clean-cuts could be caused by such a knife (Art. 1), which had sharp edge only on one side. The prosecution did not get the matter clarified from the doctor, as to how clean-cuts were caused by the knife (Art. 1), which had sharp edge only on one side. No doubt no question was asked from the defence side to the doctor to clarify the position, but, it was the duty of the prosecution to connect the weapon with the crime. The statement of the doctor in this case that the injuries to Rajendrasingh could be caused by the knife (Art. 1), therefore, cannot be accepted. It cannot be believed whatever has been stated by the doctor. His statement is an abjured one when he says that clean-cuts could be caused by the knife of one edge. Therefore, even if for the sake of argument it is believed that the knife was recovered in this case, that is not connected with the crime. The injuries to Rajendrasingh as mentioned in the post-mortem report, could not be inflicted by the knife (Art. 1)). Therefore, the recovery of the article, knife, is of no help to the prosecution. 23. Babulal PW 1 in his cross-examination, has said that after the incident, he himself and Maliram, Constable, had taken Rajendrasingh, in an auto - rickshaw to SMS Hospital. Maliram was a police - constable posted at Sadar Thana, Jaipur City, Jaipur. The report (Ex. P. 1) was also lodged at PS - Sadar, Jaipur. When Maliram, police - constable of the same police-station was in the auto-rickshaw, why was not the report immediately lodged by him, at the police station? Babulal was taking Rajendrasingh to SMS Hospital. Maliram was a police - constable posted at Sadar Thana, Jaipur City, Jaipur. The report (Ex. P. 1) was also lodged at PS - Sadar, Jaipur. When Maliram, police - constable of the same police-station was in the auto-rickshaw, why was not the report immediately lodged by him, at the police station? Babulal was taking Rajendrasingh to SMS Hospital. There were other persons also at the spot, at that time, who could have accompanied Babulal in the auto-rickshaw. Why Constable Maliram had accompanied him? And, when Constable Maliram was present at the spot, he himself was also a witness to the incidents, Had he come to spot, after the occurrence was over, then too, he was an important witness, who should have been examined by the prosecution, because, he was the person who could have gone to police station Sadar, immediately, to lodge the report, instead of accompanying Babulal in the auto-rickshaw, to SMS Hospital. Then, the prosecution mentioned the name of Maliram in the calendar of witnesses but, he has been given up. Maliram being a police-constable and an important witness, has not been examined. Why this witness was given up, is best known to the prosecution itself. It can be said that non-examination of such an important witness, gives adverse inference about the case of the prosecution. This shows that the entire story has been concocted, and the true fact has not been putforth by the prosecution. There is no evidence on record to show that accused Ashok had any enmity with Rajendrasingh (deceased), nor is there any evidence to show that Ashok and Shekhu accused were close friends. So, why and how Ashok would accompany Shekhu to. There is no explanation to this effect. There is nothing on record to infer that Ashok had also intention of inflicting some blow to Rajendrasingh. So, the finding of the trial court against Ashok, with the aid of S. 34, IPC, is not a correct one. It cannot be said that Ashok had any common intention with Shekhu. 24. Thus, in view of our above discussion, we are of the opinion that Babulal PW 1 is not a witness of sterling worth, and so, no reliance can be placed on his testimony. Premnath PW 5 is also another made out witness, and on him also, the prosecution has not placed any reliance. 24. Thus, in view of our above discussion, we are of the opinion that Babulal PW 1 is not a witness of sterling worth, and so, no reliance can be placed on his testimony. Premnath PW 5 is also another made out witness, and on him also, the prosecution has not placed any reliance. The recovery of the knife in this case also is not established, beyond reasonable doubt. Apart from this, the knife (Art. 1) is not connected with the crime. The learned Addl. Sessions Judge has thus not been able to appreciate the evidence correctly, and has failed to arrive at the correct conclusion. We are, therefore, unable to maintain the judgment of conviction passed by the trial court. 25. In the result, both the appeals are accepted. None of the accused-appellants is found guilty of offence as held by the trial court. They both are, therefore, acquitted of the said offences. They are in jail. They be released forthwith, if not required in any other case. The judgment of conviction, passed by the trial court, is accordingly set aside.Appeals allowed. *******