JUDGMENT 1. - The appeal is directed against the judgment of the learned Sessions Judge, Ajmer dated August 19, 1985 convicting the nine appellants viz. (1) Bhanwar Lal, (2) Poosa, (3) Rang Lal, (4) Rameshwar, (5) Ridh Karan, (6) Mohan, (7) Dev Karan, (8) Nanda and (9) Hagama under Sections 302/149 and 147 Indian Penal Code and sentencing each of them to imprisonment for life with a tine of L 1,000/-, on the first count and one year's rigorous imprisonment under the second count. 2. Succinctly stated, the prosecution case is as follows: The appellant except Hagama are residents of village Moojhuolav, Police Station Kishangarh District Ajmer. The deceased victim Har Chand was the brother of PW 2 Har Karan and father of PW 3 Sheodan. They are also residents of the same village. Relations between the members of the accused party and the members of the complainant party headed by the deceased Har Chand, had sunk low deep. Two or three days before 25-8-1984 an incident of "Marpeet" took place between the parties and a police case was registered against some members of the appellants party. Appellant Bhanwar Lal and his companions were arrested in that case on 22-8-1984. One Chhagan Lal belonged to the party of the appellants. At about 8 00 A.M. on 25-8-1984, the deceased Har Chand fired a shot at Chhagan Lal and injured him thereby. A report of this incident was lodged at about 10 00 A.M. on the same day at Police Station Kishangarh and a case Under Section 307, Indian Penal Code was registered. 3. At about 8.00 A.M. on the same day that is 25-8-1984, PW 2 Har Karan and PW 3 Sheodan went toward the village tank to case themselves. They saw Har Chand coming from the village side and running towards the tank. The nine appellants were running closely behind him. They were all armed with Lathies The foot of Har Chand slipped near the well of Man Singh, and he fell down. The appellants overtook him and started landing blows to him with their lathies PW 2 Har Karan and PW 3 Sheodan got frightened and hid themselves behind the bushes. They saw that the appellants continued to strike blows to Har Chand till he was dead. Har Chand bad a gun and a bag of cartridges with him. The appellants overtook him and started landing blows to him with their lathies PW 2 Har Karan and PW 3 Sheodan got frightened and hid themselves behind the bushes. They saw that the appellants continued to strike blows to Har Chand till he was dead. Har Chand bad a gun and a bag of cartridges with him. Appellant Rameshwar took up that gun and the bag of cartridges. When the appellants found Har Chand dead. they retreated and went towards the village. Appellant Rameshwar took away the gun and the bag of cartridges with him When the accused went away, PW 2 Har Karen and PW 3 Sheodan went to Har Chand. PW 5 Ghisa, Vishra, Raghunath and Bhawani Singh also came there. They all found Har Chand dead. PW 2 Har Karan went to the house of Bhawani Singh where he found his son Tejmal. Tejmal took down report Ex. P. 17 as dictated to him by PW 2 Har Karan. PW 10 Dayal Singh, Station House Officer, Police Station Kishangarh came to village Moojhuolay at about 4.00 P.M. on that very day in connection with the investigation of the criminal case registered Under Section 307 Indian Penal Code in connection with the gun fired at Chhagan Lal by Har Chand. Written report Ex. P-17 was presented to him A case was thereon registered and the investigation ensued. The Investigating Officer Dayal Singh visited the site and prepare the site plan Ex P-2. He also prepared the inquest report of the victim's dead body. The post mortem examination of the victim' dead body was conducted next day on 26-8-1984 at about 9.00 A.M. by PW 6 Dr. P.C. Agarwal the then Medical Officer Incharge, Government Hospital, Kishangarh. The Doctor noticed the following ante-mortem injuries over the victim's dead body: External- 1. Puncture wound 3 c.m.s. x 2.5 c.m.s. x bone deep on the left mandibular region, middle part, with injuries & vessels bones etc; 2. Incised wound 2 c.m.s. x 1 c.m. x bone-deep on right fore arm middle part, posterior aspect with fracture of radio ulna; 3. Lacerated wound, 4 c.m.s. x 1 c.m. x bone-deep on right leg, middle part, front aspect, with fracture of tibia fibula; 4. Swelling on left thigh, lower ⅓rd with fracture of femur; 5. Lacerated wound 3 c.m.s. x 1 c.m. x 1 c.m. on left leg, front aspect; 6. Lacerated wound, 4 c.m.s. x 1 c.m. x bone-deep on right leg, middle part, front aspect, with fracture of tibia fibula; 4. Swelling on left thigh, lower ⅓rd with fracture of femur; 5. Lacerated wound 3 c.m.s. x 1 c.m. x 1 c.m. on left leg, front aspect; 6. Femur 15 c.m.s. x 2 c.m.s. on left side of chest and abdomen, front oblique in direction with fracture of 5-6 riles in the middle; 7. Swelling on the left fore-arm, lower ⅓rd with fracture of radio ulna; 8. Lacerated wound 7 c.m.s. x 1 c.m. x 1 c.m. on the middle of scalp in middle oblique in direction; 9. Fracture and dislocation of left shoulder. Internal- 1. Fracture of five ribs in the middle on the left side of chest; 2. Fracture of the mandible; 3. Fractures of left shoulder; 4. Fracture of radius and ulna; 5. Fractures tibia, fibula and femur. 4. The Doctor was of the opinion that the cause of the victim's death was shock and haemorrhage due to extensive injuries inflicted on the body. He was also of the opinion that the injuries taken together were cumulatively sufficient in the ordinary course of nature to cause death. The post mortem examination report issued by him in Ex. P-21. Injuries No. 2 & 2 were said to have been caused by some sharp edged weapon and the rest by blunt objects like lathi. The appellants were rounded up In consequence of the information furnished by accused Rameshwar, the gun and the cartridges belonging to the deceased victim and taken away by him were recovered, On the completion of the investigation, the police submitted a crime report against all the nine appellants in the court of the Additional Munsif and Judicial Magistrate, Kishangarh who in his turn committed the case for trial to the court of Sessions. The learned Sessions Judge framed charges Under Section 147 & 302/149 against the appellants to which they pleaded not guilty and faced the trial. The appellants denied their complicity in the commission of the crime and claimed absolute innocence. In support of its case, the prosecution examined 10 witnesses and filed some documents. In defence, the accused adduced no evidence. On the conclusion of trial, the learned Sessions Judge found the charge duly established against all the nine appellants. They were consequently convicted and sentenced as mentioned at the very outset. In support of its case, the prosecution examined 10 witnesses and filed some documents. In defence, the accused adduced no evidence. On the conclusion of trial, the learned Sessions Judge found the charge duly established against all the nine appellants. They were consequently convicted and sentenced as mentioned at the very outset. Aggrieved their conviction, the accused have come up in appeal. 5. We have heard Mr. N.L. Tibrewal learned Counsel for the appellants and the learned Public Prosecutor Smt. Kamla Jain. We have also gone through the case file carefully. 6. Before taking up the contentions of Mr. Tibrewal, it may be pointed out that he has not challenged the opinion of Dr. Agarwal (PW 6) who conducted the medical legal autopsy over the victim's dead body about the cause of death. We, therefore, need not touch the evidence of Dr. Agarwal in details. Suffice it to say that the death of Har Chand was homicidal and not natural. The deceased sustained as many as nine injuries, two of which namely No. 1 & 2 were caused by some sharp edged weapon while remaining seven were caused by blunt objects like lathi. 7. It would be useful to mention here that the prosecution examined three eye witnesses viz. PW 2 Har Karan, PW 3 Sheodan and PW 5 Ghisa, each of whom claimed to have seen the incident. The learned Sessions Judge dismissed the testimony of PW 5 Ghisa and held that he had not seen the incident. The learned Judge how ever, accepted PW 2 Har Karan and PW 3 Sheodan as witnesses of truth and their testimony reliable as well as dependable. He held the charges duly proved against the appellants on the strength of what was testified by PW 2 Har Karan and PW 3 Sheodan. 8. We may also mentions at the stage in the First Information Report Ex. P-17 dictated PW 2 Har Karan and written by his son Tejmal. The name of PW 5 Ghisa has not been mentioned, In Ex. P-17 the name of Raghunath and Bhawani Singh has been mentioned as the person who has seen the incident. Both these persons Raghunath and Bhawani Singh were not produced in evidence by the prosecution. P-17 dictated PW 2 Har Karan and written by his son Tejmal. The name of PW 5 Ghisa has not been mentioned, In Ex. P-17 the name of Raghunath and Bhawani Singh has been mentioned as the person who has seen the incident. Both these persons Raghunath and Bhawani Singh were not produced in evidence by the prosecution. We may also observe that admittedly relations between the members of the complainant party on the one hand and the appellants on the other hand had sunk low deep, and each was thirsty of the other's blood. Keeping this entire background in view, Mr. Tibrewal contended that the conviction of the appellants was wholly erroneous and sustainable. 9. In impeaching the conviction, it was strenuously contended by Mr. Tibrewal that the court below grossly erred in treating PW 2 Har Karan and PW 3 Sheodan as witnesses of truth and their evidence reliable and dependable to warrant the conviction. Mr. Tibrewal took us through the statements of these two witnesses and argued that it was self evident from what they stated that none of them had seen the incident. Their entire conduct belies their claim to have seen the incident. One of them was the real brother and the other was the son of the deceased victim, None of them made any attempt to rescue the deceased victim when the assaulted, belaboured and killed by the appellants. It was argued that they could at least raised the cries and clamour to attract the people for help. The deceased received two injuries with some sharp edged weapon. Both the witnesses have not stated that any of the appellants had a sharp edged weapon with him. In FIR Ex. P-17, two persons Raghunath and Bhawani Singh have been named as the persons who had witnessed the incident. Curiously enough they have not been produced in evidence. On the other hand PW 5 Ghisa was falsely introduced as an ocular witness of the incident though his name has not been mentioned in FIR and be happens the close relative of the deceased. All these factors taken together, argued by Mr. Tibrewal are sufficient to dismiss the testimony of PW 2 Har Karan and PW 3 Sheodan. 10. Countering these contentions, it was argued by the learned Public Prosecutor that there were as many as nine assailants. All these factors taken together, argued by Mr. Tibrewal are sufficient to dismiss the testimony of PW 2 Har Karan and PW 3 Sheodan. 10. Countering these contentions, it was argued by the learned Public Prosecutor that there were as many as nine assailants. As such PW 2 Har Karan and PW 3 Sheodan could not dare to come forward to save the deceased Har Chand. The court below after a critical analysis of the evidence of these two witnesses, held them reliable and dependable. This court should be slow in disturbing the finding of fact recorded by the trial court. Reliance in support of the contention was placed on Rana Partap and Ors. v. The State of Haryana AIR 1983 SC 680 . We have taken the respective submissions into consideration. 11. We may repeat it again here that PW 5 Ghisa is a near relative of the deceased victim Har Chand. He claimed to have seen the incident. He is a resident of some other village. His name has not been mentioned in the FIR Ex. P-l7. Taking all these factors into consideration, the learned Sessions Judge held and rightly held that PW 5 Ghisa had not seen the incident and he was falsely introduced as an ocular witness. The learned Public Prosecutor also could not convince us that PW 5 Ghisa had seen the incident and his testimony was wrongly discarded by the court below. 12. The clinching issued before us is whether the court below was right in treating PW 2 Har Karan and PW 3 Sheodan as witnesses of truth. PW 2 Har Karan is the real brother and PW 3 Sheodan is the son of the deceased Har Chand. They are thus, the close relatives of the deceased victim. Of course, the close relationship does not constitute a good ground for rejecting the testimony. How ever prudence requires that evidence of a relative witness before it is accepted and acted upon should be closely and carefully scrutinised to allay any suspicion. There is no presumption in law that the oral testimony of any witness may be relative or not, is unworthy of belief. How ever, prudence again requires that before the oral testimony is accepted, its worth should be judged intrinsically and extrinsically. 13. There is no presumption in law that the oral testimony of any witness may be relative or not, is unworthy of belief. How ever, prudence again requires that before the oral testimony is accepted, its worth should be judged intrinsically and extrinsically. 13. There are several grounds which induce us to conclude that PW 2 Har Karan and PW 3 Sheodan have not seen the incident and they have falsely introduced themselves as ocular witnesses. Both these witnesses stated that the nine appellants had Lathies with them None of them stated that any of the appellants had any sharp edged weapon like sword, dagger, knife etc. Dr. Agrawal (PW 6) who conducted the post mortem examination stated that he noticed one punctured wound & one incised wound. The first was on the left mandibular region and the second was on the right fore arm as shown in the post mortem examination report Ex. P-21. Both these injuries were bone deep. These injuries were not trivial that they could escape notice. Unfortunately, neither PW 2 Har Chand nor PW 3 Sheodan stated as to how these two injuries caused by some sharp edged weapon were received by the deceased. Both these eye witnesses are silent as to who inflicted these injuries on the deceased. None of the appellants according to the eye witnesses had any sharp edged weapon. Therefore, it can be decisively said that these two injuries were not caused to the deceased victim by the appellants. Both these witness claimed to have seen the incident from its commencement to its end i.e. to say from Har Chand being followed close on his (sic) by the appellants till he was killed. They stated that Harchand fell down and there after the appellants struck blows to him. When Har Chand died, the appellants retired and went away. If these two witnesses had thus seen the incident from its commencement to the end it is expected from them to explain as to how these two injuries were caused by the sharp edged weapons to the deceased victim. Their failure on this point strongly suggests that they had not seen the incident. 14. PW 2 Har Karan and PW 3 Sheodan in the cross-examination stated that:- " geus uk gjpUn dks NqM+kus dh dksf'k'k dh vkSj uk fpYyk;sA " They made no efforts to rescue or help Har Chand nor they raised cries. Their failure on this point strongly suggests that they had not seen the incident. 14. PW 2 Har Karan and PW 3 Sheodan in the cross-examination stated that:- " geus uk gjpUn dks NqM+kus dh dksf'k'k dh vkSj uk fpYyk;sA " They made no efforts to rescue or help Har Chand nor they raised cries. The deceased was the father of one & brother of other. An yet these two witnesses one of whom namely Sheodan who was 23 years in age at that time remained inactive and a silent spectator. It is true that every person who sees the murder reacts in his own way. But here both the witnesses are close relatives of the deceased victim being his son and brother. The stoic resignation and disenchantment adopted by these two witnesses is highly astounding and contrary to normal human conduct. They could have at least raised the cries and collect the people for help. They failed even to do this minimum. This could and indifferent behaviour on their part again strongly suggests that their claim to have seen the incident is not true. 15. Both these witnesses PW 2 Har Karan and PW 3 Sheodan even after the miscreants went away, did nothing to collect the people on spot. None of them took care to go to the police station to lodge the report. The FIR, Ex. P 17 was presented to the Investigating Officer at 3.00 p.m. when the Investigating Officer happened to come to the village in connection with the investigation of a criminal case registered against the deceased Har Chand The incident had taken place at about 8 00 AM or 8.30 AM PW 2 Har Karan and PW 3 Sheodan the brother and the son of the deceased remained silent till the SHO arrived in the village. This silence again speaks volumes against their credibility. The son and the brother of the deceased are not expected to act in the manner PW 2 Har Karan and PW 3 Sheodan acted. There abnormal conduct is inexplicable. There are thus fissures and fissures, cracks and cracks in their evidence which believe their claim of seeing the incident. Their evidence deserves ignominious dismissal 16. The FIR Ex P-17 was written and prepared as stated by the Investigating Officer Dayal Singh (PW 10) in his presence at about 4 00 p.m. Their FIR Ex. There abnormal conduct is inexplicable. There are thus fissures and fissures, cracks and cracks in their evidence which believe their claim of seeing the incident. Their evidence deserves ignominious dismissal 16. The FIR Ex P-17 was written and prepared as stated by the Investigating Officer Dayal Singh (PW 10) in his presence at about 4 00 p.m. Their FIR Ex. P-1J was written by Tejmal the son of PW 2 Har Karan as stated by Har Karan It is thus clear that FIR Ex P-17 was not written immediately after the incident. It was written and prepared only on the arrival of the SHO Dayal Singh at about 4 00 P.M. There were thus sufficient time for deliberations and consultations before the FIR Ex. P-17 was lodged. Now in Ex. P-17 the names of only Raghunath and Bhawani Singh have been mentioned as the persons who had witnesses the incident. The names of PW 5 Ghisa and Vishna (not examined) have not been mentioned in FIR Ex P 17. Curiously enough Raghunath and Bhawani Singh have not been produced in evidence by the prosecution, through their names have been mentioned in the calender of witnesses filed along with the police challan. No reasons have been stated for not producing these two witnesses in evidence. It gives rise to the presumption that in case they were examined, they would have not supported in prosecution. 17. We are quite conscious of the settled position in law that the prosecution is not bound to examine all the eye witnesses of the incident. The prosecution is generally required to examine only those witnesses who unfold the prosecution case. But here the situation is quite alarming. The evidence of PW 2 Har Karan and PW 3 Sheodan is not of that sterling worth which can be accepted at its face below. It was, therefore, incumbent on the prosecution to dispel every sort of suspicion criticism by producing Raghunath and Bhawani Singh in evidence Bhawani Singh is a Rajput by caste and as such an independent person. When the evidence of PW 2 Har Karan and PW 3 Sheodan who are relative witnesses of the deceased is shaky and murky, the non-examination of the independent witnesses Raghunath and Bhawani Singh is a serious circumstances speaking against the prosecution. When the evidence of PW 2 Har Karan and PW 3 Sheodan who are relative witnesses of the deceased is shaky and murky, the non-examination of the independent witnesses Raghunath and Bhawani Singh is a serious circumstances speaking against the prosecution. The non-examination of Raghunath and Bhawani Singh by the prosecution is a serious matter and cannot be easily ignored or over ruled. 18. The several grounds discussed above tarnish, the credentials of PW 2 Har Karan and PW 3 Sheodan of being truthful witnesses. Their testimonies are replete with serious lapses and glaring infirmities. There are dents and taints on every step in their testimonies. 19. The learned Sessions Judge failed to take into consideration these infirmities and accepted the testimony of the eye witnesses as its face value, We are unable to maintain his approach. 20. On an incisive analysis, we find the evidence of PW 2 Har Karan and PW 3 Sheodan wholly incredulous and not credit worthy. 21. It is true that there bitter relations between the appellants and the deceased Har Chand. The relations had sunk so deep low that one became the thirsty of the blood of the other. That could serve as a motive of the appellants to finish Har Chand. But motive alone in the absence of credible evidence is wholly insufficient to warrant the conviction of the miscreants. Suspicion, how ever, strong and spacious it may be has never been accepted as a substitute for proof required to prove the charge. Under our existing criminal jurisprudence, an accused is presumed to be innocent and this presumption of innocence has to be dislodged by the prosecution by adducing convicting evidence. In the instant case, the prosecution has failed to dislodge this presumption and to bring the guilt at the door steps of the appellants. Their conviction cannot be maintained, they are entitled to acquittal. 22. In the result, we allow the appeal. The convictions of the appellants-(1) Bhanwar Lal (2) Possa, (3) Rang Lalit, (4) Rameshwar (5) Ridh Karan (6) Mohan (7) Dev Karan (8) Nanda and (9) Bagama under Sections 147 & 302 read with 149 Indian Penal Code and the sentences awarded to them thereunder are set aside. They are acquitted of these offences Since accused Bhanwar Lal, Rang Lal, Ridh Karan, Mohan and Dev Karan are already on bail, they need not surrender. Their bail bonds shall stand cancelled. They are acquitted of these offences Since accused Bhanwar Lal, Rang Lal, Ridh Karan, Mohan and Dev Karan are already on bail, they need not surrender. Their bail bonds shall stand cancelled. Accused Poosa, Rameshwar, Nanda and Bagama are undergoing the sentence in jail they shall be immediately released from jail, if not wanted in any other case.Appeal allowed. *******