Judgment G. K. SHARMA, J. ( 1 ) THIS appeal is directed against the judgment dated 1-9-1986, whereby the appellants were convicted and sentenced as under: 1. Appellant Tej Singh convicted under Section 302 of the Indian Penal Code and sentenced to life imprisonment and a fine of Rs. 100/- ( 2 ) APPELLANT Lesingh convicted under Sections 302/34 of the Indian Penal Code and sentenced to life imprisonment and a fine of Rs. 100/ -. 2. Padam Singh submitted a written report to S. H. O. Police Station Bhusavar on 22-9-1985 at 6. 30 p,m. stating that the appellants had caused injuries by sharp edged weapon to his uncle Himmat Singh. He has alleged that there was enmity between the parties on account of land dispute. The appellants gave beating with Farsa and Darat. The condition of his uncle Himmat Singh was very serious and be was lying at the spot. This incident has been witnessed by Ram Sahai and Brijo. On this report a case under Section 307/34 of the Indian Penal Code was registered. With the death of Himmat Singh as a result of injuries, the case was converted into Section 302 of the Indian Penal Code. The postmortem on the dead body of Himmat Singh was conducted by doctor Brijendra Singh and in his opinion the cause of death was shock and haemorrhage resulting from celebral injury and trachea and adjoining survical vessels being cut by heavy sharp weapon. After completing the usual investigation the Police submitted challan against the accused-appellant. ( 3 ) THE Trial Court framed charge against Tej Singh and Lesingh under Section 302 of the Indian Penal Code and in the alternative under Sections 302/34 of the Indian Penal Code. Both the accused pleaded not guilty and claimed trial. ( 4 ) AFTER concluding the Trial the learned Sessions Judge found both the accused-appellants guilty of the offence and sentenced them as mentioned above. ( 5 ) THE learned Counsel for the appellants argued that Mst. Kiran (P. W. 1), Sohan Dei (P. W. 2), Brijo (P. W. 4), Ram Sabai (P. W. 6) and Devi Singh (P. W. 7) are the material witnesses in this case. According to the prosecution Devi Singh (P. W. 7) is a star witness. It was argued that according to F. I. R. Ex. Kiran (P. W. 1), Sohan Dei (P. W. 2), Brijo (P. W. 4), Ram Sabai (P. W. 6) and Devi Singh (P. W. 7) are the material witnesses in this case. According to the prosecution Devi Singh (P. W. 7) is a star witness. It was argued that according to F. I. R. Ex. P. 6 there were two persons who had witnessed this incident and they are Ram Sahai and Birjo. Other witnesses i. e. Mst. Kiran, Sohan Dev and Devi Singh have not been named in the F. I. R. and these persons are later on made as eye-witnesses. The argument is that their statements are untrust worthy, unreliable and they should not be believed at all. It was also argued that according to the site-plan Ex. P. 8 there are number of houses near the site of incident. So when this incident had taken place persons reside in the neighbourhood must have come and witnessed the incident, but the prosecution has not examined any independent witness of the locality. The witnesses examined by the prosecution are near relatives of the deceased. Hence, their statements should not be believed. About Devi Singh (P. W. 7) it was argued that according to the prosecution story he was accompanying deceased and he saw the incident so he being most important witness should have been named in the F. I. R. which was lodged by Padam Singh (P. W. 5), the nephew of the deceased. When this witness Devi Singh was known to the Police, a person who had witnessed this incident and was accompanying deceased, should have been examined during investigation on the very day of incident i. e. on 22-9-85 but he was examined by the prosecution after 7 days i. e. on 29-9-1985. Therefore, this witness is a made out witness and his testimony should not be believed. It was also argued that according to the prosecution witnesses Pinky daughter of the deceased and Lalkaur mother of the deceased had also witnessed the incident but they have not been examined by the prosecution. Non-examination of material witnesses is fatal to the prosecution story. ( 6 ) KEEPING the arguments in mind advanced by both the parties we have minutely scrutinized the statements of the prosecution witnesses and we would like to deal the testimony of each witness. Non-examination of material witnesses is fatal to the prosecution story. ( 6 ) KEEPING the arguments in mind advanced by both the parties we have minutely scrutinized the statements of the prosecution witnesses and we would like to deal the testimony of each witness. ( 7 ) (P. W. 5) Padam Singh is the nephew of the deceased Himmat Singh. He has lodged the report Ex. P. 6 and according to his statement he was coming from his filed when he heard hue and cry. He arrived at the site and saw Tej Singh and Lesingh running from the place of site. He also saw his uncle Himmat Singh lying dead in front of the house of Ratan Jat. When he reached there he found Ram Sahai, Brijo, Sohan Dei, Lalkaur and other persons at the spot. Ram Sahai, Kiran, Lalkaur and Brijo told him that Tej Singh inflicted farsa blow and Lesingh inflicted darant blow and on account of these blows Himmat Singh had died. So Padam Singh (P. W. 5) is not an eye-witness to actual infliction of the blows. He had simply seen Tej Singh and Lesingh running from the place of incident. He was told about this beating by Ram Sahai, Lalkaur, Kiran Dei and Birjo. So these four persons are the witnesses who had witnessed the actual infliction of the blows by the accused persons. He has not named that Devi Singh was also there or that he had seen Devi Singh at the spot In the report Ex. P. 6 he has mentioned that Ram Sahai and Biljo had witnessed this incident. In this report he has not named Lalkaur and Kiran Dei to have witnessed this incident. Kiran is the sister of the deceased Himmat while Lalkaur is the mother of deceased. These two persons are very important witnesses. They are close relatives of the deceased. They were present at the spot and they narrated the story to Padam Singh that Tej Singh and Lesingh inflicted blows by farsa and daranti. We fail to understand that when Mst. Kiran and Lalkaur were present and witnessed the incident, Padam Singh (P. W. 5) failed to mention their names in the report Ex. P. 6. These two persons are not independent persons but they are close relatives of deceased Himmat, Padam Singh is also nephew of deceased Himmat Singh. He knows Mst. Kiran and Lalkaur. Kiran and Lalkaur were present and witnessed the incident, Padam Singh (P. W. 5) failed to mention their names in the report Ex. P. 6. These two persons are not independent persons but they are close relatives of deceased Himmat, Padam Singh is also nephew of deceased Himmat Singh. He knows Mst. Kiran and Lalkaur. There is no reason that he would forget the names of these two persons and would forget to mention in the report Ex. P. 6. Therefore, the statement of Padam Singh is of no help to the prosecution because he is nof an eyewitness. According to his. statement Mst. Kiran and Lalkaur were only the eyewitnesses but very strange that the prosecution has not examined Lalkaur. Mst. Kiran has been examined and we will discuss her testimony later on but, from the statement of Padam Singh it is evidence that Mst. Kiran is also a made out witness. ( 8 ) PADAM Singh in the cross-examination has stated that at about 6. 15 p. m. he submitted the report Ex. P. 6 at the house of Sarpanch. The paper and the pen for writing the report was given to him by the S. H. O. He prepared the report and submitted it to the S. H. O. This statement is contradicted by S. H. O. Ram Das (P. W. 10 ). He has stated in the cross-examination that Padam Singh came to him with the written report. He did not supply the paper to him and also did not dictate him the report. So the, difference in me statement of padam Singh (P. W. 5) and Ram Das (P. W. 10)indicates that from very beginning there is suspicion in the correctness of the report, Ex. P. 6. when this report Ex. P. 6 was written at whose instance it was written, who gave the detail of the incident is a doubtful matter. This creates suspicion in the entire story. Therefore, Padam Singh is an unreliable witness. ( 9 ) MST. Kiran (P. W. 1) is the sister of the deceased Himmat Singh. She has stated that she was coming from the flour mill and while coming she saw that in front of the house of Ratan Jat, Tej Singh and Lesingh were beating Himmat Singh by farsa and darant. Her statement is of this type that she witnessed the entire infliction of the blows. She has stated that she was coming from the flour mill and while coming she saw that in front of the house of Ratan Jat, Tej Singh and Lesingh were beating Himmat Singh by farsa and darant. Her statement is of this type that she witnessed the entire infliction of the blows. She has stated that she did not try to intervene and rescue Himmat Singh. She also stated that there was nobody present at that time. Then she went to her house telling that Himmkat Singh had been beaten and on this all familymembers arrived at the spot. Sohan Dei, Lalkaur, Devi Singh, Brij Mohan and Ram Sahai also arrived there. So according to the statement of Mst. Kiran there was nobody to witness this incident. All the persons named by her and alleged by the prosecution to be eye-witnesses, arrived there after the infliction of blows by the accused persons. In the cross - examination she has stated that when she reached at the dead body of Himmat Singh, Padam Singh was found there but she did not tell Padam Singh that Himmat Singh has been murdered by Tej Singh and Lesingh. She could not give any explanation as to why she did not tell padam Singh about this beating she could explain that she did not name the accused persons to padam Singh. She is the sister of the deceased, Padam Singh is the nephew of the deceased and it could not be believed that Mst. Kiran will not tell padam Singh that Himmat Singh has been murdered by Tej Singh and Lesingh. On the other hand, if we see that statement of Padam Singh (P. W. 5) who has stated that Mst. Kiran also narrated the story of infliction of blows by the accused - persons. This contradiction is an important material contradiction because both Mst. Kiran (P. W. 1) and Padam Singh P. W. 5 are near relatives of deceased Himmat Singh. Apart from this Mst. Kiran was examined by the police during investigation. Her statement under Section 161 of the Criminal Procedure Code was recorded on 22-9-85 but Mst. Kiran in her cross-examination admitted that the Police investigated from her after two days of the incident. It means that her statement under Section 161 of the Criminal Procedure code was recorded not on 22-9-1985 but was recorded after two days. Her statement under Section 161 of the Criminal Procedure Code was recorded on 22-9-85 but Mst. Kiran in her cross-examination admitted that the Police investigated from her after two days of the incident. It means that her statement under Section 161 of the Criminal Procedure code was recorded not on 22-9-1985 but was recorded after two days. Why her statement was recorded with delay? According to Mst. Kiran she was the only persons who has witnessed this incident. Other persons arrived there later on and only Mst. Kiran had seen the accused persons inflicting blows. She was present on 22-9-85 then why her statement was not recorded on that very day. If the statement of S. H. O. is taken as correct that her statement was recorded on 22-9-85 then the statement of Mst. Kiran is a false statement saying that she was examined during investigation after two days of the incident. Even after reading the entire statement of Mst. Kiran we are of this opinion that she is a liar and unreliable witness. She could not be believed on this aspect that she was coming from the flour mill after putting the wheat there. According to the map Ex. P. 8, the Investigating Officer has shown the place where the flour mill was running. He has not indicated the place from where Mst. Kiran was coming after keeping the wheat at the flour mill and from which place she has witnessed this incident. It was the duty of the Investigating Officer to have shown in the site-plan the place from where the witness had witnessed the incident. Not mentioning the place in the site-plan indicates that the story put up by the prosecution is not it correct story. The prosecution has not come with clean hands. The site was also visited by the learned Trial Court which had prepared the site plan on 13-8-1986. In this site- plan the learned Sessions Judge has shown the place where flour mill was running. So after seeing the site-plan Ex. P. 8 and the plan prepared by the Sessions Judge it becomes doubtful that Mst. Kiran had witnessed this incident. The incident had taken place in front of the house of Ratan Jat and according to the plan prepared by the Sessions Judge the house of Mst. Kiran is at such place. from where the place of incident could not be seen. Kiran had witnessed this incident. The incident had taken place in front of the house of Ratan Jat and according to the plan prepared by the Sessions Judge the house of Mst. Kiran is at such place. from where the place of incident could not be seen. Even it is difficult to see the site of incident from the flour mill because according to plan Ex. P. 8 there were number of houses in between the place of incident and the flour mill. So we need not to go in detail about this witness but it is suffice to say that horn reading the statement of Mst. Kiran it is clear that she has not witnessed the incident and she is a made out witness. Had she witnessed the incident and was present at the spot and narrated the incident to Padam Singh (P. W. 5), her name would have been mentioned in the report Ex. P. 6 filed by Padam Singh (P. W. 5 ). Therefore, no reliance can be placed on the statement of Mst. Kiran. ( 10 ) SOHAN Dei (P. W. 2) is the wife of the deceased Himmat Singh. Her statement was recorded under Section 161 of Criminal Procedure Code on 23-9-1985. There is no explanation why she was not examined on 22-9-1985 when she was available to 1. 0. on that very day. According to Mst. Kiran she had arrived at the spot after the incident. She was present on that day and she could have been examined by the Investigating Officer on 22-9-85. Sohan Dei has stated that she and her mother-in-law Lalkaur were at the house when her daughter Pinky came weeping and told that Tej Singh and Lesingh were beating her father. At this she and Lalkaur came in front of the house of Ratan Jat and saw that Tej Singh and Lesingh were beating Himmat Singh by farsa and darant. She has given the statement as if she is an eye-witness to this incident. She has also stated that at that time Devi Singh, Ram Sahai and Birjo were standing. She has not stated that Mst. Kiran was also there. So Sohan Dei (P. W. 2) has denied the presence of Kiran (P. W. 1 ). She has stated about the presence of Devi Singh, Ram Sai and, Birjo. Mst. Kiran has not stated about the presence of Devi Singh. She has not stated that Mst. Kiran was also there. So Sohan Dei (P. W. 2) has denied the presence of Kiran (P. W. 1 ). She has stated about the presence of Devi Singh, Ram Sai and, Birjo. Mst. Kiran has not stated about the presence of Devi Singh. Padam Singh (P. W. 5) has not stated about the presence of Devi Singh and Lajkaur. this beating but the name of Lalkaur has not been mentioned in the report Ex. p. 6. It is very strange that Lalkaur being mother of deceased Himmat Singh, who had witnessed the infliction of blows and who told the story of Padam Singh P. W. 5), her name was not mentioned in the report Ex. P. 6. There is no reasonable explanation about not mentioning the name of Lalkaur. She is mother of the deceased. she is a material and important witness because she had witnessed the infliction of blows. Her name should have been mentioned in the report Ex. P. 6. Not mentioning her name indicates that she was not present when this incident had taken place and she had been a made out witness in order to create evidence. This is the reason that she was not examined on 22-9-85 under Section 161 of the Criminal Procedure Code, but her statement was recorded on 23- 9-1985 in order to create an evidence. According to Sohan Dei she was informed by her daughter Pinky but she has not been examined by the prosecution. Pinky who had originally seen the accused-persons beating her father, who had informed her grandmother Lalkaur about this beating is a very important witness. Why this witness was not examined by the prosecution? There is no explanation to this. Another aspect of this witness Sohan Dei is that the dead body of Himmat Singh was taken to Bhusavar Hospital where Padam Singh also reached and there he was told the story who then lodged the report. Thus this witness has falsified the presence of Padam Singh at the site also. Padam Singh was not at all told about this incident at the spot but was told at the hospital Bhusavar by Sohan Dei. So this also falsified the entire case. In the cross-examination she has stated that she had given detail of this incident to Padam and also told that she had seen both the accused-persons murdering her husband. Padam Singh was not at all told about this incident at the spot but was told at the hospital Bhusavar by Sohan Dei. So this also falsified the entire case. In the cross-examination she has stated that she had given detail of this incident to Padam and also told that she had seen both the accused-persons murdering her husband. She has also stated that she told Padam Singh that she was informed by Pinky. So the detailed statement given by Mst. Sohan Dei shows that the incident was narrated to Padam Singh by Sohan Dei. This fact has not been mentioned in the report Ex. P. 6. Padam Singh did not mention the fact of telling the incident by Pinky to her mother and there is no mention in the report that Sohan Dei gave detailed information to Padam Singh. The report Ex. P. 6 is just contrary to the statement given by Sohan Dei. So after reading the statement of Sohan Dei we are of this opinion that this witness is also a made out witness, a false witness and no reliance can be placed on her testimony. ( 11 ) ACCORDING to report Ex. P. 6 the only persons who had witnessed the incident are Brijo (P. W. 4) and Ram Sahai (P. W. 6 ). No other name has been mentioned in the report who had seen the infliction of blows by the accused-persons. So Brijo (P. W. 4) and Ram Sahai (P. W. 6) are very material witness. Both these witnesses have been examined by the prosecution and both have not supported the prosecution story. Both have been declared hostile and they did not corroborate the statement of other prosecution witnesses and also did not support the prosecution story. ( 12 ) NOW remains the last witness Devi Singh (P. W 7) He has stated that he and Himmat Singh were coming from the bus-stand towards Girare Ka Mohalla. Himmat Singh was about 10-15 paces ahead. Then in the way he stopped at a shop to purchase bidi. In front of the house of Ratan Jat where he also reached and saw Tej Singh coming out of the Patoor of varmeed and caught Himmat Singh. Himmat Singh was about 10-15 paces ahead. Then in the way he stopped at a shop to purchase bidi. In front of the house of Ratan Jat where he also reached and saw Tej Singh coming out of the Patoor of varmeed and caught Himmat Singh. Lesingh inflicted darant blow on the neck and Himmat Singh fell down on the ground and then Tej Singh inflicted farsa blow on the neck of Himmat Singh by which his neck was cut down. Behind him Ram Sahai was also coming. He has also stated that from the side of well Brijo, Kiran Dei and daughter of Himmat Singh were coming. The accused-persons after giving blows ran away. Then Padam Singh arrived there and the entire story was narrated to Padam Singh. It means Ii that Devi Singh is an eye-witness, he had informed Padam Singh about this incident but Padam Singh ill has not stated in the statement that Devi Singh was present who had witnessed this incident and also told him the incident. Had it been a fact, Padam Singh would have mentioned in the report Ex. P. 6 the name of Devi Singh. As mentioned above Mst. Kiran and Sohan Dei have not stated that Devi Singh was also present there. According to the prosecution he is a star witness. He was accompanying deceased Himmat Singh but not other witness has stated so. According to him Ram Sahai was following him but there is no such statement made by Ram Sahai (P. W. 6 ). Even for the sake of argument believe that he was accompanying deceased Himmat Singh and he saw the accused persons beating Himmat Singh in front of the house of Ratan Jat but he did not try to rescue Himmat Singh. There is no explanation why he did not intervene and, try to save Himmat Singh. He could have given assistance to Himmat Singh. He could have reported the matter in the Police because he had witnessed the incident. Then according to Devi Singh he was present at the time of incident and also he went in the truck along with the dead body at Police Station Bhusavar. He has stated that they remained at Police Station whole night and in the morning he returned to Chhokarwada village. Then according to Devi Singh he was present at the time of incident and also he went in the truck along with the dead body at Police Station Bhusavar. He has stated that they remained at Police Station whole night and in the morning he returned to Chhokarwada village. In spite of the fact that Devi Singh remained in the Police-thana whole night along with the dead body, he had witnessed the incident himself he had accompanied Himmat Singh at the time of incident but still he did not lodge any report at the Police Station. When he stated every word to Padam Singh (P. W. 5) why he did not lodge the report at the Police Station when he was present there. Then he was present in the Police Station, why his statement was not recorded under Section 161 of the Criminal Procedure Code on that very day. His statement was recorded on 29-9-1985 i. e. after 7 days of the incident. The Investigating Officer Ram Das (P. W. 10) was cross-examined on this aspect. He has stated that the statement of Devi Singh was recorded on 29-9. 1985 at 7. p. m. at Police Station, Chhokarwada. On 23-9-85, the 1. 0. was informed by the other Police-officials that Devi Singh was not available but there is no note about this fact in the Police-diary. On 28. 9-1985, Devi Singh was again searched and according to the Investigation Officer that there is a note dt. 28-9-85 about Devi Singh and prior to this date there was no note about this witness. It means that the 1. 0. did not try to find out whether Devi Singh was an eye-witnesses to this incident or not. The other witnesses were examined on 22-9-1985 and on 23-9-1985 and Devi Singh was also an eye-witness the other witnesses would have informed the 1. 0. about his presence. According to the diary the 1. 0 was not informed about the presence of Devi Singh at the time of incident prior to 28-9-85 It means that Devi Singh was not known to any witness that he was also an eye-witness to the incident. This clear that Devi Singh has been a made out witness. The learned Sessions Judge has committed error in placing reliance on the statement of Devi Singh. This clear that Devi Singh has been a made out witness. The learned Sessions Judge has committed error in placing reliance on the statement of Devi Singh. The Trial Court did not understand the fact that Devi Singh was for the first time known to the Investigating Officer on 28-9-85. Had ha been eye witness he would have been examined by the 1. 0. on 22-9-85 when he was present at Police Station. The learned Sessions Judge in Para 33 of the Judgment has discussed about this witness Devi Singh (P. W. 7) and he also found the testimony of this witness as as untrust wortly. ( 13 ) THE learned Counsel for the appellants has relied on certain case-laws. In the case of G. B. Patel v. State of Maharashtra1 their Lordships have observed that The delay in examining eye-witnesses by the Investigating Officer can on the peculiar facts of a case, amount to serious infirmity in the prosecution case. In the present case Devi Singh alleged to be an eye-witness but his statement was recorded after 7 days of the incident. Mst. Kiran sister of the deceased was examined under Section 161 of Criminal Procedure Code after two days and Sohan Dei wife of deceased was examined on 23-9-1985 i. e. after one day. The delay in examining these eye-witnesses by the 1. 0. who are close relative amounts to serious infirmity in the prosecution case. In the case of Babu Maulana and ors. v. State of Raj2 it has been observed that The non-examination of the eyewitnesses immediately after the incident, is certainly fatal to the prosecution story which creates doubt in the whole prosecution story and this shows that either the eye-witnesses were not present at the spot at the time of the alleged occurrence, and they have been made out subsequently, or they have not stated true and correct story. So, the investigation was not fair in this case, which creates doubt in the prosecution story. ( 14 ) IT was argued that according to site-plan EX. P. 8, there were number of houses near the place of incident but the prosecution has not examined any neighbours who were independent witnesses. The incident has taken place at 6. p. m. Number of persons are residing near the place of incident as is clear from the site-plan Ex. P. 8, there were number of houses near the place of incident but the prosecution has not examined any neighbours who were independent witnesses. The incident has taken place at 6. p. m. Number of persons are residing near the place of incident as is clear from the site-plan Ex. P. 8, but the prosecution has not ,examined any independent witness. All the witnesses produced by the prosecution are near-relatives and as discussed above these witnesses are unreliable witnesses. In the case of Harbhan and ors, v. State of Raj and ors. 3 the Division Bench of this Court has observed that Independent witnesses not examined and the prosecution witnesses are unreliable. There is old enmity and litigation pending between the parties so the entire police-case is a concocted story and the case is not made out beyond reasonable doubt. Similar are the circumstances in the present case. The prosecution witnesses being examined were near-relatives, unreliable and the independent witnesses have not been examined, so the entire case becomes doubtful. Similar observation has been made by the Division Bench of this Court in the case of Pyare Lal and ors v. State of Raj. 4 ( 15 ) IT was argued that the eye-witnesses have not been mentioned in the First Information Report and the fact which the witnesses have stated in their statement has not been mentioned in the report Ex. p. 6 and it has not been mentioned as from which place the witnesses had witnessed the incident. So on account of these infirmities the prosecution story is not to be trusted. In this regard he has relied on the case of Kamal Pathak v. The District Magistrate Burdwan and ors. 5 ( 16 ) IT was argued that padam Singh (P. W. 5) has stated in the cross-examination that Kiran Devi has informed him that Himmat Singh was given blows by farsa and darant by Tej Singh and Lesingh, but her name has not been mentioned in the report Ex. p. 6. Therefore, Kiran Dei should not be relied at all and the entire prosecution story become doubtful. To support this argument he has relied on the case of Rahim Beg and anr. v. State of U. P. 6 ( 17 ) IN view of our above discussion we find that the learned Trial Court has not appreciated the evidence in a right prespective manner. To support this argument he has relied on the case of Rahim Beg and anr. v. State of U. P. 6 ( 17 ) IN view of our above discussion we find that the learned Trial Court has not appreciated the evidence in a right prespective manner. The Trial Court has failed to arrive at a correct conclusion and has committed error in convicting the appellants. The prosecution has failed to prove its case beyond reasonable doubt. The entire prosecution story has not been put up in a correct manner and the witnesses are unreliable and untrustworthy. The Judgment of the Trial Court cannot be sustained. ( 18 ) AS a result, the appeal is accepted. Both the appellants are not found guilty of the charges for which they have been convicted by the Trial Court. Appellant Tej Singh is acquitted from the charge under Section 302 of the Indian Penal Code and accused Lesingh is acquitted from the charge under Section 302/34 of the Indian Penal Code. Both the appellants are in jail. They be released forthwith if not required in any other case. Appeal allowed.