JUDGMENT 1. 1. Both these appeals arise out of the judgment passed by the Additional Sessions Judge, Sikar dated 3rd April, 1991 whereby he convicted the accused-appellants for offence under Section 302 read with Section 34 IPC and sentenced each of them to undergo sentence of imprisonment for life and fine of 2,000/- each, in default of payment of fine, to further undergo three months' simple imprisonment. 2. Brief facts leading to these appeals are that accused-appellant Laxmi lodged a report at Police Station Raghunath Garh on 5th May, 1990 at 2.30 p.m. (Ex. P. 24) whereupon a case was registered as Criminal Case No. 37/90. S.H.O , Om Prakash (PW 11) went to village Gothara Bhukhran where the incident was alleged to have taken place, for investigation where he was harded over a written report Ex. P 1 by Laxman s/o Ramu Ram Jat which is the first information report in this case. According to the allegation made in this report, Ramavtar, who is adopted son of Birda Ram of village Kharsadu, was married about 10 to 11 years before with accused Jhamoti d/o Sukhdev of village Gothara Bhukhran. For last 6-7 months, he had gone out for earning his bread. He came to the village on the previous evening of the incident in a tempo (Riksha) to his in-laws' house where his mother-in-law, Lichami, his wife Jhamoti, sister in-law Vimla and one domestic servant Birbal were there. Ramavatar was murdered in the night by giving beating by his mother-in-law, sister-in-law, his wife and servant Birbal. Ramavtar's father Birda Ram, who had gone to his daughter's resident in village Kolada, while returning, came to village Gothada Bhukhran and when reached the residence of Sukhdev, he found the door closed. He waited for some time, then went in side and found one room open wherein Ramavtar's dead-body was lying. Birda Ram was stunned on seeing this and immediately went to village Kharsadu and told his family members about this. Thereafter ten persons came from village Kharsadu, who informed the Superintendent of Police on telephone from village Kundan that a murder had taken place in village Gothara Bhukhran, hence the same should be got investigated. When this report was handed over to S.H.O., Om Prakash, (PW 11) he sent the same to the Police Station for getting the report registered, which has been registered as Crime No. 38/90. When this report was handed over to S.H.O., Om Prakash, (PW 11) he sent the same to the Police Station for getting the report registered, which has been registered as Crime No. 38/90. This report was handed over to S.H.O. at about 6.00 p.m. and it reached the police station at 10.00 p.m. He started investigation on the next day when he prepared a site plan (Ex. P 3) and prepared the memo of inspection. He also recovered blood stained earth vide Ex. P 4, besides a broken Musal and pieces of bangles. He also recovered a Darda and got the post-mortem conducted of the dead body of Ramavtar by Dr. B.L. Jangir, Medical Jurist, Shri Kalyan Hospital, Sikar, who found the following injuries on the person of the deceased:- 1. Lacerated wound 2 cm. x 0.5 cm. x skin tissue deep on left thumb. 2. Lacerated wound 2.5 cm. x 1 cm. x bone deep on frontal area of scalp. 3. Lacerated wound 1,5 cm. x 0.5 cm x bone deep on top of scalp swelling around. 4. Lacerated wound 3 cm x 1.2 cm. x bore deep upper l/3rd part of leg-compound and communicated fractures of Tibia Febula. 5. Lacerated wound 1.8 cm. x 1.00 cm. x bone deep bone edge coming out of wound compound fracture. 6. Lacerated wound 2.5 cm. x 1.2 cm. x muscle deep on right fore arm pronimal. Past lateral fracture ulna seen clottes blood and efferent below in (illegible) of wound. 7. Lacerated wound 2.5 cm. x 1.5 cm. x 1.2 cm. on web between left little finger and ring finger dislocation of little first phalanged joint. 8. Abrasion 1.5 cm. x 1.2 cm. on frust of fore head middle. 9. Bruise multiple irregular places dark cherry brown coloured on left fore arm defused swelling. Sub cuts effusion of blood found on cut section. 10. Multiple bruises x c swelling left hand clottes blood under heath the skin fracture of 5th meta corpac bone seen. 11. Deffuse swelling x c bruise on dorsen of head (R) on desection blood clott found and fracture of head of 1st metacarple bone seen. 12. Multiple bruises diffuse swelling. Right fore arm wholly on explanation fracture of Rt. ulna in middle part found. 13. Contusion 3" x 11/4" on left side creat region. 14. 11. Deffuse swelling x c bruise on dorsen of head (R) on desection blood clott found and fracture of head of 1st metacarple bone seen. 12. Multiple bruises diffuse swelling. Right fore arm wholly on explanation fracture of Rt. ulna in middle part found. 13. Contusion 3" x 11/4" on left side creat region. 14. Multiple dark brown blood dired stain on Right leg on explanation fracture of right leg bone both Tibia and Febula at middle ⅔rd part clottes pieces of blood. 15. Diffuse swelling both foot and ankle. No boney injury is seen. Doctor did not opine regarding cause of death and reserved his opinion till the receipt of report of Chemical Examiner of the viscera he had collected and sent for such examination. S.H.O., Police Station Raghunath Garh, thereafter, wrote a letter to the Medical Jurist Dr. Jangir that he recorded 5 injuries on the persons of the deceased of which three injuries were serious. Whether these injuries were sufficient to cause death of deceased Ramavatar? Dr. Jangir wrote back to the Investigating Officer that, "In above cited matter, the bony injury found on the deceased in postmortem report finding may be possibly sufficient to cause death with amalgamated effect. However, final opinion is kept reserved till the report of Chemical Examiner for viscera is received." After completing the investigation, police filed charge sheet against Birbal, Laxmi and Jhamoti for offence under Section 302/34, IPC in the court of Munsif and Judicial Magistrate, Sikar. Charge-sheet against accused Vimla was filed under Section 173(a) Cr.PC. She was declared absconder and, therefore, all the three appellants were committed to the court of sessions for standing trial. The learned Additional Sessions Judge framed charge for offence under Section 302 IPC simplicitor against all the three accused-appellants. They pleaded not guilty to the charge and claimed to be tried. 3. Prosecution examined 14 witnesses in support of its case. Accused in their statements under Section 313, Cr.PC dented their participation in the crime. Laxmi, however, stated that on the night between 4th & 5th May, 90, she was sleeping alone at the residence when Laxman, Ramu, Pala Sukhdev and one more person came with the dead-body of Ramavatar and placed it out side her house. When she proceeded, she was given beating by them as a result of which she sustained injuries. Laxmi, however, stated that on the night between 4th & 5th May, 90, she was sleeping alone at the residence when Laxman, Ramu, Pala Sukhdev and one more person came with the dead-body of Ramavatar and placed it out side her house. When she proceeded, she was given beating by them as a result of which she sustained injuries. She, however, rushed to the police station and lodged the report. Accused Birbal led defence evidence and examined two witnesses in support of his case. The trial Judge held the accused appellants guilty of offence under Section 302 read with Sec 34 IPC and convicted and sentenced them as mentioned above. 4. Challenging the aforesaid conviction and sentence these appeals have been preferred. 5. Challenging the conviction, the learned counsel for the appellants submitted that the appellants have been deliberately involved in this case by some one else. It is submitted that the deceased Ramavtar is son-in-law of accused Laxmi and accused of husband Jhamoti. It is past tea years that they have been married and they have children also of the wedlock. The deceased had been serving in Bombay and had come for a short interval. There was no reason as to why he should have been murdered. On the other hand he has been taken in adoption by Birdba Ram PW 9 but despite that he did not get the property transferred in his name but instead he had got it muted in the name of wife of the deceased Jhamoti and the reason was that according to Birdha Ram deceased used to drink and was not earning his bread. He, in fact was not happy with the deceased and it was he who is the first person according to the prosecution case to have noticed the dead body of Ramavtar in the house of the accused appellants. It is submitted that in this house only ladies are staying where Jhamoti had also come for a short while. Her father Sukhdeo is serving in CRPF and stays out. It is submitted that the incident is alleged to have taken place in the night intervening between 4/5th May, 1990 and the information had been given to police by brother of deceased Ramavtar. Her father Sukhdeo is serving in CRPF and stays out. It is submitted that the incident is alleged to have taken place in the night intervening between 4/5th May, 1990 and the information had been given to police by brother of deceased Ramavtar. Laxman was told the story of murder by Birdha Ram but it is not understandable as to how Birdha Ram or Laxman had come to know as to who were the assailants of deceased Ramavtar. Neither of the two is eyewitness in the case and admittedly, they have not come across the alleged eye witnesses PW 2 Pooran Singh and PW 13 Rambux prior to lodging the report thus, the first information report is surrounded with mystery in as much as it contains imaginary facts and the Investigating Officer has investigated the matter on the lines which were mentioned in the report by Laxman. It is then submitted that the report filed by Laxman is also an inadmissible document in as much as about 3 hourse earlier to that a report had already been lodged by accused Laxmi at the same police station and the Investigating Officer PW 11 Om Prakash had gone for investigation of that report. The report, which was lodged by Laxmi accused was already there and therefore, this report is hit by Section 162 Cr.PC. It is then contended that the statement of both the eye-witnesses PW 2 Pooran Singh arid PW 13 Ram Bux have to be discarded for several reasons. Even if both the statements are read, no case for murder of Ramavtar is made out against any of the accused persons it is submitted that Pooran Singh disclosed the incident after two days of the occurrence to police. His statement if read in light of the first infer-mation report, medical evidence and other circumstances, then it does not remain worthy of any credence. He is a chance witness who is alleged to have gone in the late evening for bringing a compounder to a village which is at a further distance then the other village where there is a Veterinary Hospital and doctor and compounder stayed there. This is done in order to show his presence out side the residence of the accused persons where, according to the prosecution, the murder took place. This is done in order to show his presence out side the residence of the accused persons where, according to the prosecution, the murder took place. It is submitted that he has given an explanation for not entering the house of the accused to go to rescue of the deceased but the reasons are difficult to understand. It is then submitted that this witnesses has not struck to his statements he has given before the police and has deliberately resides on various counts. He even does not identify Ramotar's photographs mixed with the photographs of other persons were shown to the witness as to who was the deceased amongst the photographs and he could not identify though they were absolutely clear. It is submitted that Pooran Singh could not stand the cross examination and has contradicted himself on various counts. PW. 13 Ram Bux, who is an old man of 70 years, does not have a perfect eye sight and has a poor vision as recorded in his own statement. It is submitted that his statement has been recorded after six days of the occurrence and no explanation worth, the name has been forth coming for this inordinate delay in disclosing the incident to any one. The witness has contradicted himself on several important points in the cross examination. He and Rmavtar, deceased belonged to the same village and is a chance witness in the village where the murder has taken place. It is then submitted that injuries sustained by accused appellant Laxmi have not been explained at all. The Investigating Officer PW 11 Om Prakash, it is submitted, has admitted in his statement that according to the investigation, she sustained injuries in the same incident where Ramavtar deceased has received injuries. In this view of the matter it was essential to have established as to what was the genesis of the entire case. It is submitted that the learned Judge has wrongly relied upon the first information report lodged by her. Particularly, when the same has not been put to the witness and in the statement under section 313 Cr. P.C. The learned counsel further submits that the cause of death in the instant case is absolutely doubtful. Dr. B.L, Jangid, PW. 12 has admitted in his statement that prior to issuance of the letter Ex. Particularly, when the same has not been put to the witness and in the statement under section 313 Cr. P.C. The learned counsel further submits that the cause of death in the instant case is absolutely doubtful. Dr. B.L, Jangid, PW. 12 has admitted in his statement that prior to issuance of the letter Ex. P. 26 on 2-7-90 he was not certain as to whether the injuries sustained by the deceased were sufficient in the ordinary course of nature to have caused death. The witness, it is alleged, stated that he took the viscera as he suspected some foul play and reserved his opinion for sending the viscera to the Chemical Examiner for his opinion. In the report of the Chemical Analyst, it is submitted that viscera gave positive test for the presence of Zinc Phosphide and ethyl alcohol, which fact consecutively state that the deceased has been poisoned. The prosecution, for reasons best known, had not investigated into this aspect of the case as to the fact of administration of poison to the deceased by any unknown person. No effort has been made to find out whether the poison has been administered prior to beating or subsequent to it. It is submitted that it therefore, cannot be said with certainty as to whether the death has been caused by beating or because of his taking poison. Learned counsel for the appellants in support of his arguments has placed reliance on State of Punjab v. Bhajan Singh and others AIR 1975 SC 258 Surxamani Dei and others v. State of Orissa AIR 1979 SC 1534 Sharad Birdhi Chand Sarda v. State of Maharashtra . (3). 6. Mr. R.S. Rathore, appearing for the complainant submitted that it is a cold blooded cruel murder which has been committed by mother-in-law and the wife of the deceased with the assistance of sister-in-law and domestic servant. It is submitted that the relations between the husband and wife and the members of the in-laws family were not cordial in as much as his wife was not being sent to his place by his mother-in-law. It is submitted that the complainant party could not have the details as to what happened inside the house of the in-laws of the deceased as there was none on behalf of the complainant party at that point of time. It is submitted that the complainant party could not have the details as to what happened inside the house of the in-laws of the deceased as there was none on behalf of the complainant party at that point of time. It was only after Birda Ram had gone and saw the dead body then he informed his family members and on arrival of the police it was disclosed by Laxman who had lodged the first information report Ex. P. 2. It is submitted that the report lodged by accused appellant Laxmi earlier in time by which she tried to put the prosecution on a wrong track and that alone is in fact a strong circumstance against the accused on basis of which her involvement can be inferred. The another circumstance against the accused is alleged to be that all the members of the family who happened to be present there immediately absconded and one of the accused has not been traceable till date. It is submitted that once it is established that the death took place in the house of accused appellant Laxmi and the deceased was last seen in their company it was for them to have shown as to how the murder took place in their house. It is submitted that assuming for a moment that both the eye witnesses do not depose as to who caused the fatal blows, but this much has established that a quarrel followed by beating to the deceased took place inside the house. It is then submitted that both the eye witnesses PW 2 Pooran Singh and PW 13 Ram Bux have categorically stated that they had seen the accused manhandling the deceased. It is submitted that the case is based on circumstantial evidence besides the two aforesaid witnesses and there are strong circumstances to infer that the accused inflicted injuries which resulted in death of Ramavtar. It is then submitted that blood has been found on two places, one in the chowk and another in the room and the evidence of Rambux PW 13 is that he had witnessed the accused persons dragging the deceased towards the room where ultimately the dead body had been found and the blood had also been found. The learned counsel for the complainant has submitted that he does not subscribe to the prosecution allegation that poison was detected in the stomach of the deceased. The learned counsel for the complainant has submitted that he does not subscribe to the prosecution allegation that poison was detected in the stomach of the deceased. He submits that the report of the Chemical Examiner Ex. P. 27 cannot be read into evidence and it should be kept out of consideration. According to him, it was a case of beating the deceased by four persons namely, Laxmi, Jhamoti, Vimla and Birbal and the case subsequently has been so twisted to give them the benefit by showing it to be a case of poisoning also. The learned counsel for the complainant himself doubted the fairness of the investigation to this extent of the case. The learned counsel for the complainant has submitted that there are two parts of the prosecution story and the first part has fully proved by statements of two eye witnesses who have seen Ramavtar alone in the house and was being man-handled by the four accused persons and then dragging towards the place where the dead body has been found, and his submission is that these circumstances have been proved by these two eye witnesses coupled with the other facts mentioned above, i.e. the absconding of the accused and wrong reporting by Laxmi be taken as conclusive circumstances to establish the prosecution story. 7. Learned counsel for the complainant has relied upon Lodi Jagannadhan v. Smt. Padmabati Baurani AIR 1962 Orissa 7 , Punjab Singh v. State of Haryana AIR 1984 SC 1233 , Makan Jivan and others v. State of Gujarat AIR 1971 SC 1779 and State v. Bhauss Manmantee Pawer AIR 1962 Bom. 229 . 8. The learned Public Prosecutor appearing for the State supported the arguments advanced by the learned counsel for the complainant but after being asked question by the Court, admitted that he cannot substantiate his arguments in the light of Ex. P. 27 and the details furnished in the post mortem report that poison was not administered to the deceased and on that point there is no investigation in the case. It is farther admitted that there is no evidence as to whether it was prior to infliction of the injuries that poison was administered or it was subsequent to beating, in order to accelerate the death that this poison was administered. 9. It is farther admitted that there is no evidence as to whether it was prior to infliction of the injuries that poison was administered or it was subsequent to beating, in order to accelerate the death that this poison was administered. 9. We have given our thoughtful consideration to the rival contentions and have perused the entire case law and the evidence on the record. 10. The perusal of the entire law makes it clear that the burden of proving the prosecution story is on the prosecution. If the prosecution story is based on the circumstantial evidence it should not be inconsistent with the principle that no other hypothesis should be available on the record than this are relied upon by prosecution. It is also the duty of the prosecution to see that there is no missing link in the entire chain and the circumstances are so linked that they lead to one only one conclusion and it is in this light that we have perused the evidence. We are not convinced by the arguments advanced by the learned counsel for the complainant that the report of the Chemical Examiner is not admissible in law. On perusal of case law which have been quoted above, it is clear that it is not the mandate of law that it is essential to examine the Chemical Examiner to prove the report which is produced before the court as contemplated under Section 293 Cr. PC which reads as under: "293. Reports of certain Government Scientific experts : (1) Any documents purporting to be a report under the hand of a Government scientific expert to show this section applies upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code. (2) The Court may, if it thinks fit, summon and examine any such expert as to the subject matter of his report. (3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. (3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. (4) This section applies to the following Government scientific experts, namely: (a) any Chemical Examiner or Assistant Chemical Examiner to Government; (b) the Chief Inspector of Explosives; (c) the Director of the Finger Print Bureau; (d) the Director, Haffkeins Institute, Bombay; (e) the Director (Deputy Director or Assistant Director) of a Central Forensic Science Laboratory of a State Science Laboratory; (f) the Serologist to the Government". A careful reading of the aforesaid section makes it dear that expert has to be summoned and examined only if the court thinks fit to call him for such examination. In the instant case, the expert received from the FSL was not challenged before the trial court. Neither the prosecution nor the accused at any stage moved an application for summoning the expert and the court also did not think it necessary to summon the expert as there was no ambiguity in it. It can therefore, be used in evidence at trial it being a report from the State FSL as mentioned in Section 293 (4) (a). The arguments of the learned counsel for the complainant of pressing in service Sections 45 and 50 of the Evidence Act in this respect has been advanced only to be rejected, [n the circumstances of this case where neither any application was moved nor any steps taken by the side of accused to challenge the report it cannot be said that the report has to be ignored. 11. Coming to the facts of the case, in the light of the aforesaid law, we first would like to deal with the evidence of both the eye-witnesses. PW 2 Pooran Singh in his examination-in-chief has submitted that he went to village Khudi at 4.00 p.m. to bring compounder Jai Singh as his she buffalo was sick. 11. Coming to the facts of the case, in the light of the aforesaid law, we first would like to deal with the evidence of both the eye-witnesses. PW 2 Pooran Singh in his examination-in-chief has submitted that he went to village Khudi at 4.00 p.m. to bring compounder Jai Singh as his she buffalo was sick. He reached the village Khudi at 7.00 p.m. Jai Singh was not available at his residence so he waited for him for another hour and at about 8.00 p.m. left for his village where he arrived at between 10.30 to 11.00 p.m. and when he was in the vicinity of the village he heard the cries coming from the house of Laxmi. He went on that side and saw that in the compound of the house deceased Ramavatar was being beaten by hands & fists by Birbal & his hands were held by Jhamoti & Vimla. Laxmi was also therewith a club about two feet long. He saw this for some time & then left for his house. Meanwhile he came across one person who came out of the house of Ram Niwas, who asked him as to what is happening, he stated that in the house of Laxmi Ramavtar is being beaten. He stated that he did not intervene because this was a usual affair in the house of Laxmi where Ramavtar was being beaten because Jhamoti was not being sent and he was always insisting for taking her. According to him Jhamoti and Vimla are daughters of accused Laxmi. He on the next day heard rumour that Ramvtar has been murdered. He however slept on that night and next day when the police came and Sub-Inspector asked that any body have seen Ramavtar being beaten he came forward and stated that he had seen the incident in a day before yesterday. Thereafter, his statement was recorded by the Investigating Officer In cross-examination, the witnesses admits that his house is about 200 double steps away from the house of Laxmi and is on one side of the village and in between there are 20 houses. He has been cross-examined about there being a Veterinary Hospital in the another village namely Kutar. This is closer to village Khudi where he has gone. He has been cross-examined about there being a Veterinary Hospital in the another village namely Kutar. This is closer to village Khudi where he has gone. He has admitted that if he would have gone to village Kutar, house of accused Laxmi would not have fallen on the way but it had fallen in the way because he went to village Khudi. The witness admitted that the incident took place on the 4th while he gave statement on 6th. He was asked as to why he did not intervene, when the beating was going on, to which his reply was that he had not seen the deceased being beating by lathies and therefore, he did not come forward to his rescue. He then mentioned the fact of Laxmi having a lathi in her hands and Birbal's pushing in his police statement to which he was confronted. He has also been confronted on the aspect of seeing one man from the house of Ram Niwas, which he had not stated in the statement before the Police. The witness admits that he did not mention about the previous night's incident to any body in the village and went to Sikar on the next day where from he returned in the night. He has admitted that in the neighbourhood Nopa Ram, Ram Niwas, Badri Prasad, Sultau, Rameshwar, Pyarelal, another Ram Niwas and Bhinwa Ram are residing but none of them had neither come nor he told to any one of them. He admitted that he also did not raise any alarm when he saw the deceased being beating. He could not named person who informed him that Ramavtar has been murdered. The witness denied the suggestion that he is giving the statement because of some enmity between him and Laxmi on the one side and him and Birbal on the other side. 12. From the perusal of the statement of this witness no inference can be drawn that any of the accused had caused injuries on the person of the deceased which are corroborative by medical evidence. According to him Ramavtar was being beating by hands and fists by Birbal and beyond that he has not seen any thing. 12. From the perusal of the statement of this witness no inference can be drawn that any of the accused had caused injuries on the person of the deceased which are corroborative by medical evidence. According to him Ramavtar was being beating by hands and fists by Birbal and beyond that he has not seen any thing. Thus, he cannot be termed to be an eyewitness of the occurrence and at best his evidence go to show that he has seen Ramavtar in the house of accused Laxmi but that too when his evidence is accepted. Thus, he does not appear to be a reliable witness firstly because, he is a chance witness who happens to leave for a village which is at a further distance for bringing a Compounder whom be never brought and he did not get his she buffalo treated by any one even on the next day also. He has only stated that he went to village Khudi for calling Jai Singh because he wanted to show his presence on the road where the house of Laxmi is situated. His statement that, moment he came near the village he heard the cries, cannot be accepted in the light of the circumstances that Laxmi is living in a crowded locality and if hue and cry was so loud that he could heard while entering in the village, there is no reason for the neighbours for not coming out from their houses to see the incident. Besides this, his statement is not corroborated by any other witness in any another manner. His conduct of not mentioning the fact to any one even after the murder took place is also not understandable. There are several improvements in his statement which has been given to the police with which he has been confronted. This witness, therefore, does not help the prosecution in proving its case. There is yet another important aspect of the matter which makes his statement totally unworthy of any reliance is that he could not even identify the photographs of deceased Ram-avtar whom he alleged to have seen being beating. He has come with a case that he is knowing to the family for 10-12 years but when he was shown the photographs of Ramavtar along with other persons and Vimla also with other girls he could neither identify Ramavtar nor Vimla. He has come with a case that he is knowing to the family for 10-12 years but when he was shown the photographs of Ramavtar along with other persons and Vimla also with other girls he could neither identify Ramavtar nor Vimla. This clearly shows that this witness is either a lier or does not want to come out with the true story he is not trustworthy and we could not place any reliance on his statement. 13. Coming to PW 13 Ram Bux, it can be said that he is an old man of 70 years, who according to his own statement has poor eye sight. In his examination-in-chief, he stated that his daughter has been married in village Gothda Bhookharan, where the incident took place and though he is resident of village Kharsadu, he came to this village to meet his daughter. In the evidence he saw Ramavtar going in a Taxi to Laxmi's house and after about an hour he came out of the house for passing Urine and heard noise of some quarrel going on in the house of Laxmi. Ramavatar was crying chod-do-chod-do. At that time, he say one boy who passing that side who on enquiry told him that Ramavtar was being beating by Laxmi, Birbal, Jhamoti and Jhamoti's sister. He then went towards the house of Laxmi and saw from out side that Ramavtar's hands were held by Jhamoti and her younger sister and Laxmi was having a two feet long club and Birbal was pushing Ramavtar and manhandling him.He then returned to his house. In cross-examination, this witness has been confronted with his police statement on several points and be has given a complete different version on trial. Neither he mentioned about the presence of another eye-witness Pooran Singh in his police statement nor he mentioned about hearing the cries 'chod-do-chod-do'. He had also not mentioned about the fact that the lamb boy had told him that Ramavtar was being beating by Laxmi, Jhamoti, Birbal and Jhamoti's sister, nor he had stated in police statement that Jhamoti and her sister had caught hold of hands of the deceased and he was being ma a handling by Birbal. His conduct is very unnatural when he stated that he neither mentioned to his daughter with whom he was staying nor to Ram Niwas nor to any one in the village. His conduct is very unnatural when he stated that he neither mentioned to his daughter with whom he was staying nor to Ram Niwas nor to any one in the village. When he was asked about the clothes worn by Ramavtar he stated that it was a dark night hence he could not see. The witness has poor eye-sight for last about 5-7 years as admitted by him. He was also shown the photographs of Ramavtar. He pointed out to one photograph and said that he cannot definitely say that the same is of Ramavtar as he has very poor eye-sight. If that was the situation then we are unable to place any reliance on his statement to the fact that he could identify the accused persons from a distance i.e. from the road at the odd hour at 10.00 p.m. when there was no light. Besides this, the statement of this witness R has been recorded after six days of the occurrence and in the meanwhile he did not mention to any body. He too is a J chance witness and we are not convinced that he is a reliable witness. Even assuming a moment that what he says is truth even though the prosecution does not get any help except to the effect that Ramavtar was seen in the house of the accused. Besides these two witnesses, there is no other evidence on the record to connect the accused appellant with the crime. None of the neighbours have been examined in the case either to show the circumstances or to depose about the incident. According to the post mortem report which we have quoted above, the deceased has sustained as many as 15 injuries and all of them were by blunt object. Besides this the deceased was also administered poison.On the autopsy the doctor has found his both pupel dilated, cornea hazy, seleria Pale. There was sedum in his lungs. His viscera was taken and sent for chemical examination. The Doctor in post mortem report Ex. P 25 stated that he will give his opinion after receipt of report of chemical examiner of the viscera. He was asked to give explanation by the police by Ex. There was sedum in his lungs. His viscera was taken and sent for chemical examination. The Doctor in post mortem report Ex. P 25 stated that he will give his opinion after receipt of report of chemical examiner of the viscera. He was asked to give explanation by the police by Ex. P. 26 as to whether the injuries were sufficient in the ordinary course of nature to cause death to this he answered that the death might be possible due to these injuries but definite opinion can only be given on receipt of the report of the chemical examiner. The Chemical Examiner's report is that Zink Phosphide and Ethyl Alcohol has been detected from the viscera on examination and it is thus, established that he was administered poison also. The Doctor, in his statement, when recorded in the court stated that injuries could be sufficient in ordinary course of nature to cause death but the poison accelerate the death. He then stated that he was unable to say by the time, he had sent the report Ex. P. 26 that injuries were sufficient in the ordinary course of nature to have caused death. Thus, there could be no doubt that there have many injuries which were considered sufficient cause of death and it was a cumulative effect of the poison and infliction of the injuries.There is no evidence worthy to suggest that as to whether administration of poison preceded or followed the beating. It also cannot be said as to whether it was an act of one person or more than one person. This possibility could not be ruled out that by poisoning he was first made helpless and then injuries inflicted on him by Moosal (Pastal), which had been recovered from the place of occurrence. In the same sequence, Laxmi has also sustained injuries. She has not been got medically examined by the police for reasons best known. Though in the early report, she lodged, her injuries have been mentioned and that also discloses that she sustained injuries on all parts of the body including the head. Thus, it appears that there might have been some incident and the genesis of the entire story has not been investigated fairly and properly. Though in the early report, she lodged, her injuries have been mentioned and that also discloses that she sustained injuries on all parts of the body including the head. Thus, it appears that there might have been some incident and the genesis of the entire story has not been investigated fairly and properly. The submission of the learned counsel for the complainant that because false report has been lodged, adverse inference may be drawn and it may be considered as one of the circumstances. This argument has no relevancy in this case because, no material has been placed on record to show that the report lodged was totally false or the explanation she gave is also false.In this case the report has been lodged by Laxman after the story ha9 been narrated to him by Birdaram. Birdaram PW 9 has occasionally gone to the house of Laxmi where he found that there was none in the house, he still entered the house and found the dead body of his son. He did not inform any one in that village nor raised hue and cry to collect the neighbours and went to his own village and brought people from there. Admittedly he did not come at the time when either Pooran Singh or Ram Bux have seen all the four persons being beating the deceased as appeared in the first information report. This has not been explained either by the witness or could successfully explained by the learned counsel for the complainant or the State as to how the names of four persons as assailants could enter in the first information report when there was none in the house. Neither Laxman has come out with that story nor Birdaram. Both of them have concealed this aspect of the matter and it assumes all importance in view of the fact that Birdaram did not want to part with his property to his adopted son, the deceased Ramavtar. He had transferred the property in the name of Jhamoti but whom also he has tried to remove from the picture by making her an accused in the case. Thus, by positive act by not transferring the property in the name of adopted son, he could adopt any one else including Laxman and disentitle Jhamoti by getting her life imprisonment in the murder case. Thus, by positive act by not transferring the property in the name of adopted son, he could adopt any one else including Laxman and disentitle Jhamoti by getting her life imprisonment in the murder case. In these circumstances the entire case is full of mystery where the whole family of Laxmi is 1 sought to be implicated in this case. Even if the murder had taken place in the house of Laxmi and dead body has been recovered from the room but in absence of the fact that as to whom the room belongs, and whether it was an act of one, two or more than two persons, it is too risky to fasten the liability on either of them or all of them collectively. No burden can be placed on the accused for disbelieving the fact of presence of the dead body in their house in absence of any primary evidence on the part of the prosecution. It is in such cases, we could successfully relied upon the observations of their Lordships of the Supreme Court in Sarwan singh v. State of Punjab AIR 1957 SC 637 wherein their Lordships have stated that the prosecution story may be true but between 'may be true' and 'must be true' there is inevitable a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. We are therefore, of the ; opinion that the prosecution has not proved the case beyond ail reasonable manner of doubt. 14. The result is that these appeals are allowed. The conviction and sentence of the accused appellants are set aside. They are in jail, they shall be released forthwith if not required in any other case.Appeal allowed. *******