N.K. JAIN, J.—This appeal is directed against the order of learned Sessions Judge, Pali dated 18-4-1989 whereby he has convicted the accused appellants under sections 302, 148 and 458 IPC and sentenced them as follows : (i) Under Section 148 IPC : 3 years R.I. (ii) Under Section 458 IPC : 14 years R.I. and a fine of Rs. 100/- and in default of payment of fine to further under go R.I. of one month. (iii) Under Section 302/149 : To life imprisonment and a fine of Rs. 100/-I.P.C. and in default of payment of fine to one month R.I. with a direction that all the sentences shall run concurrently. 2. Brief facts of the prosecution case are that a dispute existed between Nathuram cousin of Motaram on one side and Tejaram, Ramlal on the other-side and a case regarding agricultural land was pending between the parties. On 13-2-91 Motaram was sleeping in his house. At about 1 A.M. he was aroused from sleep on hearing the cries of his brother Ramlal who was sleeping in the Nohra alongwith his mother. He opened the door connecting the house with the Nohra and saw Tejaram, Ramlal, Bhanwarlal, Cholaram, Motiram, Gyanaram standing armed with Kulhadies and lathies. They were beating his brother Ramlal and his mother Gamni. He raised hue and cry; on this Chhogalal, Oghada Ram and Roopa Ram came there. It was particularly mentioned that Chhogalal had been sleeping in a truck parked nearby and he had come from the truck. It was also alleged that all the accused returned by the same way they had entered viz. by opening the gate of the Pol. 3. On 13-9-1981 at 3.30 a.m., a report of this incident was lodged at the Kharchi Police Station by Motaram after leaving both the injured persons at Hospital of Kharchi in the truck of Chhogalal. It was also stated that before 5-6 days of the incident, Chhogalal had told one Bana Rebari that you will see and hear some news in 2-4 days, as Nathu is fighting cases with their relations. It was also alleged that accused persons came in the tractor of Tejaram with an intention to kill Nathuram and went to his Bera but returned as some boring work was going on and there were 8 to 10 persons present. It was also alleged that accused persons came in the tractor of Tejaram with an intention to kill Nathuram and went to his Bera but returned as some boring work was going on and there were 8 to 10 persons present. They left the tractor on the road side near village and came to kill the informant. The informant Motaram has also alleged that he always use to sleep in the Nohra but on that day Ramlal was sleeping in his place and was murdered as the accused mistook him for the first informant. He has alleged that he could recognise the other unknown person in future. On this report, Police registered a case under Sections, 147 148, 149, IPC and started investigation. Site plan Ex. P. 2 and side inspection memo Ex. P-2A were prepared. 4. Both the injured were medically examined by P.W. 9 Dr. Nand Kishore Sharma who prepared the injury reports Ex. P-11 and Ex. P-12 and he found following injuries on the person of Ramlal. (i) Vertical incised wound with oozing of blood of 8.5 x 1.5 cms. x brain deep on the right forehead region to frontal region from eye brows to upward lacerated brain tissues coming out from the wound. Injury was grievous and was caused by sharp object. (ii) Haematoma of both the eyelids of right eye- (iii) Haemotoma of left upper eye lid. Patient was unconscious irritable and responded to painful stimulies, X-Ray could not be done. PW 9 Dr. Nandkishore Sharma found following injuries on the person of Mst. Gamni (Ex. P. 12) : (i) Vertical incised wound with blood oozing with 8.5 x 3.0 x brain deep on the left temporal region 3 cm above the ear pinna. Brain tissue was lying out of the wound. 5. Ramlal died on 13-9-1989 at 7.20 P.M. The post mortem examination was conducted by PW 9 Dr. Nandkishore Sharma vide Ex. P-13. It appears that Smt. Gamni was admitted to Bangad Hospital, Pali, where she was operated upon for the brain injury. She, however, died in the hospital on 21-9-81 at 8.30 a.m. An autopsy was conducted by Dr. Tulsi PW 12, who prepared the post mortem report Ex. P-12 in this regard. 6. The police arrested Surjaram on 15-9-81. Tejaram and Cholaram on 18-9-1981, Ramlal, Bhanwarlal and Motiram were arrested on 21-9-1981 and Ratansingh was arrested on 16-9-1982. She, however, died in the hospital on 21-9-81 at 8.30 a.m. An autopsy was conducted by Dr. Tulsi PW 12, who prepared the post mortem report Ex. P-12 in this regard. 6. The police arrested Surjaram on 15-9-81. Tejaram and Cholaram on 18-9-1981, Ramlal, Bhanwarlal and Motiram were arrested on 21-9-1981 and Ratansingh was arrested on 16-9-1982. At the instance of the accused Tejaram and on his information Ex. P-43 an axe was recovered on 19-9-1982. At the instance of Ramlal and on the basis of his information memo Ex. P-44 one axe was recovered on 23-9-1981 vide Ex. P-3. At the instance of the other accused persons certain lathies were recovered. Articles so recovered were duly sealed. The blood stained soil and blood stained clothes of the deceased persons were seized and sealed separately during investigation. The various sealed articles were sent for chemical examination to the State Forensic Science Laboratory, from where report Ex. P-9 was received in this regard. The articles were also sent to Serologist & Chemical Examiner at Calcutta from where report Ex. P-10 was received. 7. On completion of usual investigation, the police submitted a challan against Tejaram, Bhanwarlal, Motiram, Cholaram and Ramlal u/s. 302, 456, 147, 148 and 149 IPC in the court of Addl. Chief Judicial Magistrate, Sojat, on 11-12-1981, who committed them on 1-10-1982 to the court of Sessions Judge, Pali (Case No. 9/82) and proceedings u/s. 299 were initiated against Ratan Singh. He was arrested on 16-9-82 and u/s. 302, 456, 147, 148 and 149 IPC on 1-10-1982 challan was filed against him before Addl. Chief Judicial Magistrate who committed him to Sessions Court on 14-10-1982 and a case bearing no. 45/82 was registered. Since both the matters arose out of one incident, the learned Sessions Judge consolidated these on 11-1-1983. The learned Sessions Judge framed charges u/s. 148,458,302 IPC read with 149 against all the accused persons. The accused pleaded not guilty and claimed trial. 8. The prosecution examined 23 witnesses and filed 51 documents, in support of its case. The accused appellants in their statements u/s 313 Cr.P.C. denied the prosecution story. In their defence 15 witnesses were examined and 48 documents were filed. 9. On the conclusion of trial, the learned Sessions Judge, Pali acquitted Ratansingh but found the case well established against the accused appellants Tejaram, Ramlal, Bhanwarlal, Cholaram, Motiram and Surjaram. The accused appellants in their statements u/s 313 Cr.P.C. denied the prosecution story. In their defence 15 witnesses were examined and 48 documents were filed. 9. On the conclusion of trial, the learned Sessions Judge, Pali acquitted Ratansingh but found the case well established against the accused appellants Tejaram, Ramlal, Bhanwarlal, Cholaram, Motiram and Surjaram. The accused appellants were convicted and sentenced as stated above. Hence, accused appellants have preferred this appeal. 10. We have heard Mr. M.L. Garg, learned counsel for the appellants and Mr. H.R. Panwar, learned Public Prosecutor and Mr. T.S. Champawat, learned counsel for the complainant. 11. In the instant case there is no doubt that two persons were brutally murdered. PW 9 Dr. Nandkishore Sharma who had conducted the post mortem examination of deceased Ramlal opined that the cause of death of Ramlal was fatal injury to brain causing neurogenic shock and damage to the vital centres of it. PW 12 Dr. Tulsidas who had conducted the post mortem examination of deceased Gamni has opined that the cause of death was damage to brain tissue and vital centres. Both these victims sustained injury on the brain and it was on account of such injuries that they died. Their death was not natural but homicidal. To this extent, learned counsel for the accused appellants has not challenged the prosecution story but he has assailed the conviction on number of grounds viz. the FIR was not recorded at the alleged time and had been ante-timed, Iadan Ram father of the informant was falsely introduced as a witness at a late stage, oral dying declaration, as well as dying declarations Ex. P-31 and Ex. P-32 do not inspire confidence, the medical evidence and recoveries do not connect the accused appellants with the commission of the offence. On the basis of above contentions, learned counsel submitted that the accused appellants have been falsely implicated and the trial court has not appreciated the evidence properly. No independent witness was produced to corroborate the evidence and the prosecution evidence was contradictory, inconsistent and discrepant and did not inspire confidence. The prosecution has failed to prove its case beyond reasonable doubt. 12.1 Mr. H.R. Panwar, learned Public Prosecutor has submitted that there was sufficient evidence of enmity between Motaram and accused appellants which is evident from Ex. No independent witness was produced to corroborate the evidence and the prosecution evidence was contradictory, inconsistent and discrepant and did not inspire confidence. The prosecution has failed to prove its case beyond reasonable doubt. 12.1 Mr. H.R. Panwar, learned Public Prosecutor has submitted that there was sufficient evidence of enmity between Motaram and accused appellants which is evident from Ex. P-51, Thus, the appellants had sufficient motive to kill Ramlal under the mistaken belief that he was Mota Ram. He has submitted that the presence of the prosecution witness Mota Ram, Chhogalal, ogad at and near the scence of occurrence is natural and their testimony is truthful ard was rightly believed by the learned trial court. Minor discrepancies and in consistencies are bound to be found in the statements of truthful witnesses and on account of such discrepancies and inconsistencies, the prosecution story should not be rejected. These statements are corroborated by the FIR. Recoveries of two axes connect Tejaram and Ramlal with the crime. The learned counsel for the complainant has vehemently urged that the infirmities in the investigation should not detect from the worth of testimony of eye witnesses in any way. Their credible evidence should not be discarded merely because the 1.0. bad committed some lapses while investigating into the offence. 13. In order to deal with these points, it would be proper to discuss the relevant evidence briefly. P.W. 15 Motaram has stated that while he was sleeping in the house he heard the cries of his brother Ramlal. He opened the door between the house and the Nohra) and saw his brother surrounded by Tejaram, Ramlal, Bhanwarlal, Cholaram, Motiram, Sujaram, along with one other person. He raised hue and cry and on this Ogadaram, his father Iadanji, Chhoga-ram and Ruparam came there, in the meantime the accused made good their escape. He has also stated that six days before the incident Chogalal told Bana Rebari, that you will hear some new news within 3-4 days as Nathu Ram is fighting cases with his (Chhogalals) relations. He has further stated that on the date of incident accused persons had visited Bera of Nathu Ram to kill him. Now, as per his own statement it is clear that Motaram was not in a position to see the accused entering the house as he was sleeping and was aroused only after hearing the cry of Ramlal. He has further stated that on the date of incident accused persons had visited Bera of Nathu Ram to kill him. Now, as per his own statement it is clear that Motaram was not in a position to see the accused entering the house as he was sleeping and was aroused only after hearing the cry of Ramlal. Similarly his statement that accused appellants had visited the Bera of Nathu Ram to kill him does not inspire confidence as Mota Ram has not stated that he had been informed by any one about this fact. P.W.6 Nathu Ram has of course stated that he had sent Kishan Singh to village in this connection but the prosecution has not examined Kishan Singh. He was examined in defence as D.W. 9 and in his statement Kishan Singh contradicts the version given by Nathu Ram that he had sent him to village. Rather Kishan Singh has stated that Ramlal was present at his Bera. In cross-examination Kishan Singh has denied that in the night accused appellants had come in tractor and also denied that he had informed Nathu Ram that the accused appellants had murdered Ramlal and Mst. Gamni. Under these circumstances, in the absence of any independent witness not being produced by the prosecution it cannot be believed that Kishan Singh had informed Nathu Ram or Motaram as alleged. 14. Mota Ram has stated that Chhogalal told Bana Rebari that you will hear some thing new. The prosecution has not examined Bana Rabari to prove this fact. There is nothing on record to show that the accused appellants had any enmity with Ramlal and, therefore, it cannot be believed that without there being any enmity, the accused appellants will kill Ramlal. Mota Ram in his statement has introduced some facts which were not in his personal knowledge, yet he has deposed about them. This shows that he is capable of making statements about facts, which he did not know. This induces us to scrutinise the evidence of this witness carefully and with cautious. 15. As per the Investigating Officer P.W. 21 Laxmansingh site plan was prepared immediately after the occurrence, in which he had shown the place where the deceased were sleeping. From a perusal of site plan it cant be ascertained where Mota Ram was sleeping at that time and from where he saw the occurrence. 15. As per the Investigating Officer P.W. 21 Laxmansingh site plan was prepared immediately after the occurrence, in which he had shown the place where the deceased were sleeping. From a perusal of site plan it cant be ascertained where Mota Ram was sleeping at that time and from where he saw the occurrence. It is also not mentioned as to where the truck of P.W. 4 Chhogalal was parked, where Chhogalal was sleeping in the cabin of truck and from where Ogada Ram and Ruppa Ram came to the place of occurrence, and from where they saw the occurrence. P.W. 21 has staled that he did not examine the other persons living near the place of incident. He has also stated that he was not in a position to say whether Ex. D-33 site plan was right or wrong. According to Chhogalal P.W. 4 he was sleeping in the cabin of the truck and the truck was lying in front of Nohra of Mota Ram and not in front of Nohra of Deva. He has also stated that on hearing cry, he reached the place of occurrence. He has further stated that all the assailants came out from the gate of the Nohra of Mota Ram. P.W. 10 Ogada Ram has stated that in the night at about 12 after hearing the cries, he got up and came out and when he reached, the accused appellants came out from the house of his brother. He has further stated that on his reaching they ran away. In the police statement Ex P-38 Ogada Ram has stated that assailants went out from the gate of Nohra but when he was confronted in the court he denied the portion that assailants went out from the side of the house P.W. 18 Roopa Ram has stated that his house is near the house of Iadan and he was sleeping in the house. In the night at about 12 he heard cry Mare Mare from the house of ladanji. He further stated that his son Chhogalal was in the lane adjoining the house and had come out from a truck parked in that lane. P.W. 15 has stated that ail the accused appellants went out. P.W. 20 Hari Singh has proved Ex. D-33. According to P.W. 4 Chhogalal, he reached the place of occurrence and other witnesses also reached the place of occurrence. P.W. 15 has stated that ail the accused appellants went out. P.W. 20 Hari Singh has proved Ex. D-33. According to P.W. 4 Chhogalal, he reached the place of occurrence and other witnesses also reached the place of occurrence. As he was sleeping in the cabin of truck, it was difficult for him to hear the cry, be that as it may. As per the statement of P.W. 4 Chhogalal and P.W. 15 Mota Ram they saw the assailants coming out from the gate of the Nohara which is situated on the western side whereas according to P.W. 18 Roopa Ram and P.W. 10 Ogada Ram assailants went out from the gate of the house, which is admittedly situated towards the eastern lane. The two gates, thus open towards two different lanes and a person in one lane could not have seen the assailants leaving from the other, the two lanes being separated by the Nohra and the house Seen from this angle, there are two different versions with regard to fleeing of the assailants from the place of occurrence. Hence, it has not been established successfully as the assailants had been seen fleeing from the gate of Nohra or from the gate of the house. This discrepancy in the evidence of two sets of witnesses is not trivial or minor but it is a substantial one discrediting their testimony altogether. 16. As regards the introduction of Iadan Ram, P.W. 15 Mota Ram has stated that when he raised hue and cry, Ogada Ramji and his father Iadan Ram came. P.W. 4 Chhogalal has stated that when he reached in the Nohra, Iadan Ram was present there. P.W. 10 Ogada Ram has stated that Iadan Ram is his neighboure and on that night he heard the cry of Mare Mare on this, Chhogalal his son and he reached at the house of Iadan Ram. It may be stated as per this version Iadan Ram, father of the informant was sleeping and available in the same house along with Mota Ram but it is surprising that his presence was not shown in the F.I.R. and his statement was not recorded promptly and for the first time it was recorded on 6.10.1981. The prosecution has not given any explanation as to why this statement was not recorded till 6 10.1981. The prosecution has not given any explanation as to why this statement was not recorded till 6 10.1981. P.W. 21 Laxman Singh, I. O. has stated that certain persons were available but they were not examined. Though all the witnesses have parrot like stated that ladan Ram was present from the very beginning but omission of his name in the F. I. R. casts serious doubt regarding his presence. This fact, coupled with the fact that he was examined very late, makes his testimony suspect and we do not find it safe to rely upon the same. 17. As regards the oral dying declaration of the deceased Gamni P.W. 5 Megha Ram has stated that Teja and Rama gave Kulhadi blows and rest gave blows by legs. P.W. 9 Dr. Nand Kishore Sharma stated that injured was not in a position to answer any question as she was not in complete senses. The Doctor has stated that the injured could talk irrelevantly only and they could not have recognised anyone as their motor sensory and vocal centres were damaged. P.W. 15 Mota Ram has stated that they took Goma while taking injured to hospital but the prosecution has not examined Goma in whose presence the alleged oral dying declaration was made, on the other hand Goma was examined by defence as D.W.1 Goma has stated that Ramlal and Gamni both were not in a position to speak. The testimony of this witness is in complete accord with the medical evidence and hence is more reliable than the testimony of the prosecution witnesses the depose about the alleged dying declaration. P.W. 8 Jagannath, Constable was also admitted to be present and was examined by the prosecution, but he did not support the prosecution case, so he was declared hostile. In view of the above statement and in the opinion of Dr. Nand Kishore Sharma, Mst. Gamni was not in a position to answer and recognise, therefore, the oral dying declaration does not appear to be truthful. 18. The occurrence took place at 1 A.M. and the report was lodged at 3.30 in which informant has stated that he went to Ahua Chowki and after leaving the injured in the hospital came to lodge the report. The dying declaration of Ramlal Ex.P-31 was recorded at 3.10 and the dying declaration of Mst. Gamai Ex.P-32 was recorded at 3.20 P.W.. 19 Dr. The dying declaration of Ramlal Ex.P-31 was recorded at 3.10 and the dying declaration of Mst. Gamai Ex.P-32 was recorded at 3.20 P.W.. 19 Dr. Manoj Kumar has stated that a nurse was on duty and she had dressed the wounds of the two injured and the dying declarations were recorded in his presence by Nathu Singh which were attested by him. P.W. 21 Laxmansingh, I.O., has stated that it was he who had recorded the dying declarations. A perusal of dying declarations will show that they are almost verbatim copies of each other and there is no mention as to who had lathies and who had kulhadies. The comparison of hand writings of Laxmansingh and Nathusingh Ex, D-38 and Ex. D-36 clearly reveals that Ex. P-31 and 32 are in the handwriting of Nathu singh which is supported by the statement of P.W. 19 Dr. Manoj Kumar. It is also clear that dying declarations was not attested by two witnesses as provided in the police Rules. Admittedly a nurse was there and she could have been asked to attest the declarations but that was not done. Therefore, it is clear that the statement of P.W. 21 Laxmansingh given in the court is unreliable. The F.I.R. was lodged at 3.30 does not contain the factum of dying declarations. This omission is material and it creates serious doubt on the ground that before the F.I.R. was recorded, the Investigating Officer could not have proceed, to hospital and record dying declarations at 3.10 a.m. 19. We may state that all alleged eye witnesses are close relatives. P.W. 15 Mota Ram is informant whose brother Ramlal and mother Mst. Gamni have been killed. ladan Ram is the father of the informant and brother of P.W. 10 so evidence of such close relatives should be scrutinised carefully. The prosecution has not examined any independent witness inspite of the fact that such witnesses were available, which is clear from the statement of I.O. P.W. 21 Laxmansingh who has stated that he was not examined any person living near by. The witnesses are related and interested and these statements are so discrepant and contradictory that none of them could be said to be a witness of sterling worth on whose testimony, one may place implicit reliance for recording conviction against the accused appellants. 20. The witnesses are related and interested and these statements are so discrepant and contradictory that none of them could be said to be a witness of sterling worth on whose testimony, one may place implicit reliance for recording conviction against the accused appellants. 20. As regards the recovery, P.W. 6 Nathu Ram has stated that the accused appellants, who came there were having lathies and has not stated that assailants had kulhadies, whereas as per the injured persons had sustained one each injury by sharp weapon and there was no injury by blunt weapon. In this case two kulhadies were recovered, one kulhadi was recovered at the instance of Teja Ram and the other was recovered at the instance of Ramlal. Both these were sent for chemical analysis. Forensic Science Laboratory Report is Ex.P-9 and according to which both the kulhadies were having blood over it. The same was sent to Serologist and the report of the Serologist is Ex.P-10 according to which one kulhadi was stained with human blood and states that the blood stains on item Nos. 20/21 and 28 are disintegrated and their origin cannot be determined. The evidence of the blood stained kulhadi is not sufficient as the prosecution has not been able to prove that kulhadi which was stained with human blood was recovered from whom. Thus it is not clear whether the recovered kulhadi was of Teja Ram or of Ramlal. The other infirmity in the Chemical Examiners Report is that it does not mention the extent of blood seen on the kulhadi. It has not been established clearly as to which particular accused, the incriminating axe belonged. As such, it can not be used against any one of these two accused. The prosecution has not only to show an incriminating circumstances against the accused but it has the I duty to prove it. The prosecution has utterly failed to prove the incriminating circumstances beyond doubt and to connect the recoveries effected by the accused appellants with the commission of offence. To sum up we find that the testimony of the alleged eye witnesses is wholly discrepant, contradictory | and unreliable and does not inspire any confidence. Further, alleged dying declarations do not inspire any confidence for the reasons already stated. Recoveries of two axes do not sufficiently connect the accused appellants or any of them with the crime. To sum up we find that the testimony of the alleged eye witnesses is wholly discrepant, contradictory | and unreliable and does not inspire any confidence. Further, alleged dying declarations do not inspire any confidence for the reasons already stated. Recoveries of two axes do not sufficiently connect the accused appellants or any of them with the crime. We do not find it safe to maintain the convictions of the accused appellants on such evidence. It is unfortunate that two cold blooded murderers are going unpunished in this case. But, we are clearly of the view that the convictions of the appellants cannot be sustained on the basis of the evidence on record. 21. In the result, the appeal filed by the appellants Teja Ram, Ramlal, Bhanwarlal, Chola Ram, Motiram and Suja Ram is allowed.