JUDGMENT 1. 1. Both these appeals are directed against the judgment dated 26th August, 1991, passed by the learned Sessions Judge, Ajmer, in Sessions Case No. 73/1993, whereby he convicted both the accused appellants for offence under S. 302 read with Section 34 IPC and sentenced each of them to undergo imprisonment for life. Both the accused-appellants filed separate appeals bat having arisen out of the same judgment, they are being disposed of together. 2. Brief facts leading to these appeals are that on 8th Jan. 1990, a first information report Ex. P/20, was taken down on the statement of Shri Lakshman, recorded by the SHO Police Station, Civil Lines, Ajmer, wherein it was stated by Lakshman that his brother Ramesh @ Trilok son of Burnomal and himself are running a tea stall at Ganj On the date of occurrence at about 3 30 p m. when his brother Ramesh had gone home and he was on the shop, one Mukesh Goyal alongwith one Kalu came to his hotel and asked as to where Ramesh has gone. On his information that he has gone to home both these accused told him to send Ramesh behind the State Bank of India, where they are waiting for him as they have arranged to repay the loan, hence he should reach there by 4.00 p.m. His brother Ramesh, however, came to the shop at 4.30 p. m. At that time accused Kalu had come again and stayed there for 15 to 20 minutes and repeated the cause of his coming that is that Mukesh is calling Ramesh for paying off the loan as he has arranged for the money and that he was waiting for him behind the State Bank of India. Accused Kalu, thereafter asked for a cup of tea which was offered to him. Ramesh thereafter, left on cycle to the appointed place but returned after about half an hour and stated that Kalu and Mukesh were not available there. Kalu again came with an auto-rikshaw between 5 30 to 6.45 p.m. and again insisted Ramesh to go behind the State Bank of India, where Mukesh was waiting for him. Ramesh intended to go on cycle but Kalu told him that today, he will take him in auto-rikshaw, Mukesh will repay the loan and will also pay for the auto-rikshaw's fare. Hearing this Kalu and Ramesh left in the auto-rikshaw. Ramesh intended to go on cycle but Kalu told him that today, he will take him in auto-rikshaw, Mukesh will repay the loan and will also pay for the auto-rikshaw's fare. Hearing this Kalu and Ramesh left in the auto-rikshaw. At about 7.00 p.m. when he left for home he was informed that the dead body of Ramesh is lying behind the State Bank of India, hence he had arrived and identified the dead body of Ramesh. He further stated that his brother Ramesh had been killed by accused Mukesh and Kalu. He further stated that his brother had advanced about Rs. 1,000/- to accused Mukesh which despite the repeated reminders had not been repaid. On recording this statement, a case for offence under S. 302 read with S. 34 IPC was registered and investigation commenced. 3. It is pertinent to mention here that prior to taking down this first information report, the S H.O. Police Station, Civil Lines, Ajmer, Shri Abhay Singh PW 22, had already received the telephonic information from some un-known person that a dead body is lying on the road behind the State Bank of India, with injuries and profusely bleeding and he had left for the place of occurrence. Soon there after, where he is alleged to have taken down the aforesaid statement of Lakshman, when he arrived there. The dead-body of the deceased was taken possession of and was sent for postmortem examination, which was conducted on 9th January, 1990, at 11.00 a.m. and Dr. V.D. Kavia, PW 16, found following injuries on the person of the deceased : 1. Stab wound 11/2 x 1/2 x 11/2 cm. on the front of left thigh middle third; 2. Incised wound 5 x 1 x 42 cm. on the leateral aspect of it thigh middle third. Obliquely placed; 3. Stab wound 2x1x11/2 cm on the on left side of back. 6 cm below scapula; 4. Stab wound 3 x 1 cm. depth in on the lumber region; 5. Stab wound 2 x 1 x 3 cm on the back of left thigh upper third; 6. Stab wound 3 x 1/2 cm on the manubrium sterium; 7. Stab wound 31/2 cm x 1/2cm. depth in on the right lateral side of waist just below the 11th rib; and 8. Stab wound 5 cm x 3 cm x perietorial cavity deep on the Rt. iliaregion situated 3 cm. Stab wound 3 x 1/2 cm on the manubrium sterium; 7. Stab wound 31/2 cm x 1/2cm. depth in on the right lateral side of waist just below the 11th rib; and 8. Stab wound 5 cm x 3 cm x perietorial cavity deep on the Rt. iliaregion situated 3 cm. above the right inguavalqua obliquely situated with loopal small intestine seen propudia. 4. The cause of death according to the Doctor was shock and haemorrhage as a result of multiple stabs and injuries were ante mortem in nature. Site plan was prepared and certain incriminating articles were recovered from the place of occurance which inter-alia other things included a blood stained piece of knife and one shoe of right foot. Both the accused appellants were arrested on 11th January, 1990, an on their information under S. 27 of the Evidence Act and at their instance knives were recovered. At the instance of Mukesh, the remaining part of the knife which was found at the place of occurance was recovered from the place near the occurance in a heap of ash, while at the instance of accused Kalu a knife was also recovered which was kept hide under a stone near the school. After completion of investigation charge-sheet was submitted against both the accused appellants tor offence under Section 302 IPC read with S 34 IPC and they were committed to sessions where charge was read over to them to which they denied and claimed to be tried. 5. The prosecution in support of its case examined 22 witnesses. Accused denied the occurance in their statements recorded under S. 313 Cr. PC and did not lead any evidence in defence. The trial court convicted and sentenced the accused appellants as indicated above. Challenging the same these appeals have been preferred. 6. It is contended on behalf of the accused appellants that the entire case rests on the testimony of the two alleged eye witnesses, namely PW 1, Narsingh and PW 2, Shankar and the corroboration of which has been sought from the statement of PW 20. Challenging the same these appeals have been preferred. 6. It is contended on behalf of the accused appellants that the entire case rests on the testimony of the two alleged eye witnesses, namely PW 1, Narsingh and PW 2, Shankar and the corroboration of which has been sought from the statement of PW 20. Lakshman and the recovery of the knives at the instance of accused appellants It is submitted by the learned counsel for the appellants that this evidence is not enough to connect the accused appellants with the crime because PW 1, Narsingh and PW 2, Shankar, besides being chance witnesses, are highly interested witnesses in view of the fact that they are the friends of deceased Ramesh. It is further submitted that these two witnesses are the auto-rishaw drivers and per chance happened to be standing near the place of occurrence and are alleged to be the witnesses of the occurance. It is also submitted that despite the fact that they had been taking tea regularly at the shop of the deceased and were friendly with his brother Lakshman, yet did not go to his shop and informed about the occurrence. Not only that, it is submitted that their conduct is absolutely abnormal in Dot narrating this incident to any-one till the police interrogated them It is also submitted that no evidence is forth coming to indicate that as to how the police got a clue that the aforesaid two witnesses were the eye witnesses of the occurrence It is then submitted that the place of occurance is a busy road in Civil Lines, which is very close to the Collectorate circle and the incident had taken-place in broad day light at 5 30 p.m. and yet no independent witness has come forward to give evidence about be incident. It is also submitted that admittedly near the place of occurrence, besides tea-sta 11, there was a betel shop and a drilling machine but none of the shop-keeper or the persons standing there or the driver or the cleaner of the machine had been examined. It is also submitted that admittedly near the place of occurrence, besides tea-sta 11, there was a betel shop and a drilling machine but none of the shop-keeper or the persons standing there or the driver or the cleaner of the machine had been examined. It is next submitted that the recovery of the knives is not enough to connect the accused with the crime in view of the fact that the recovery had been made from the open place and no effort had been made to take the finger prints on these knives to show that they had been handled by the accused appellants at any time. It is submitted that when the piece of the knife had been recovered from the place of occurrence which was blood stained and was handle of the knife. It was obligatory for the Investigating Officer to have taken the finger prints so that the evidence could have been before the Court as to whether the finger prints were that of the accused or not. It is then submitted that the story of balance of thousand rupees to be paid on that day by accused Mukesh, which had been told by Lakshman, is not corroborated by the statement of Pradeep, PW 3. According to him Rs. 500/- had already been returned earlier. Besides, re-payment of loan by Mukesh, itself could not have been a motive for committing ghastly act of murder in the manner alleged. Lastly, it is submitted that the investigation in the case had not been fair and the first information report also appears to be ante-dated in as much as the maker of it, i.e Lakshman, docs not even recall as to when his statements were recorded by the police coupled with the fact that according to Pradeep PW 3, he was detained in the police station over a night and several other persons had been called in the police station and detained as suspects in the case. 7. Learned Public Prosecutor, has supported the judgment passed by the trial-court and submitted that the statements of PW 1, Narsingh and PW 2, Shankar, are convincing. Their conduct is neither such which may term them as un-reliable witnesses nor their presence can be said to be per chance. 7. Learned Public Prosecutor, has supported the judgment passed by the trial-court and submitted that the statements of PW 1, Narsingh and PW 2, Shankar, are convincing. Their conduct is neither such which may term them as un-reliable witnesses nor their presence can be said to be per chance. They had given the reasons of their being near the place of occurrence that they had gone to the office of the R.T.O. which is nearby the State Bank of India, for getting the meter checked and on return they thought of taking a cup of tea. It is submitted that this is normal tendency of the persons that they do not want to be involved themselves as a witness voluntarily and thus, if Narsingh, PW 1, and Shankar, PW 2, did not lodge the report, they cannot be branded as un-reliable witnesses. It is then submitted that the evidence of Lakshman PW 20, is un-shaken and the corroboration can very well be sought from the statements of these witnesses who have shown strong circumstances for the accused participating in the Crime. It is submitted that the evidence of recovery of knives is not only at the behest of the accused but fully connects the accused with the crime as the same had been found not only blood stained but the same blood group which the deceased had. In these circumstances, it is submitted that there is over-whelming evidence on record to substantiate the prosecution case and to hold the accused guilty for offence under Section 302 read with S. 34 IPC. Thus, it is concluded that there is no warrant for interference in conviction. 8. We have given our thoughtful consideration to the rival contentions made by the learned counsel for the parties and perused the entire record of the case. At the out-set we may observe that apparently it appears that from the reading of the first information report coupled with the statement of PW 1, Narsingh, there is strong evidence in the case connecting the accused with the crime but after reading the whole evidence we find that the evidence led in the case is not convicing. PW 1, Narsingh, is an auto-rikshaw driver who, on 8th January, 1990, had gone to Weight and Measurement Department, for getting his meter checked alongwith PW 2, Shankar. PW 1, Narsingh, is an auto-rikshaw driver who, on 8th January, 1990, had gone to Weight and Measurement Department, for getting his meter checked alongwith PW 2, Shankar. Both of them met Inspector from the department, who took them from Roadways Bus Stand to Central Jail and left at them about 5.00 p.m. Thereafter they went to the RTO Office to deposit the receipt and the fitness fee. At 5.30 p m they came on tea stall behind the State Bank of India. Both of them started taking tea just then they heard the cries and saw that accused Mukesh and Kalu were inflicting knife blows on a person from front and back-side. They reached there but the accused threatened them with knife and ran towards Kamal Udhyog. They also saw the person who had fallen down, who was Ramesh, resident of Ganj, Ajmer. After 5 to 10 minutes, they went to Agra Gate Taxi Stand and there they found 8 to 10 auto rickshaw drivers to whom they stated that the murder has taken place, PW 2, Shanker, remained at taxi stand and he went to home. He admitted in cross-examination that he too knows that the deceased was Ramesh because he takes a cup of tea at his hotel. He however, admitted that he did not inform at the hotel of Ramesh about the incident. He then gave an explanation that he never wanted to be involved in investigation in the case. He also admitted that he did not inform Kesar Bag, Police Out-post or Agra Gate Police Out-post or the Roadways Bus Stand Police Out-post or Civil Lines, Police Station, About the occurrence. He stated that it was on the next day when the SHO came to him alongwith some other police personnel then he narrated the story. He admitted in his statement that he informed other auto-rikshaw drivers about the incident but it was not mentioned by him in his earlier statement. He has also admitted that neither he told about the murder to any-one-else nor to the members of his family. He also admitted that he cannot say that on which part of the body Ramesh was hit He also admitted that he and Shankar were not taken at the place of occurrence by the SHO. He has also admitted that neither he told about the murder to any-one-else nor to the members of his family. He also admitted that he cannot say that on which part of the body Ramesh was hit He also admitted that he and Shankar were not taken at the place of occurrence by the SHO. He also admitted that on the tea stall where he was taking tea, there were several other persons sitting and taking tea. The owner of the tea stall also reached on the spot alongwith him when the occurance took place. He however, stated that he does not know the names of the persons who were sitting there. This witness does not remember as to whether he was called to the police station in the presence of the accused persons or not The witness further stated that he had not attended the funeral of deceased Ramesh and further that he was taken from his home to Shankar's place and then to police station where he had been detained fori 1/2 hours He has also stated that he had no talks with Lakshman about murder at any stage. He has also admitted that he had told about the incident to the auto-rikshaw drivers at the place 100 yards away from the Sadar Kotwali. The witness also stated that he had never met Shankar after the incident. To several other questions he bad given evasive answers and he was trying to suppress the truth We consider it necessary to quote here the statement of PW 2, Shankar, whose examination in chief is identical to the one stated by Narsingh. PW 1 and facts are used in the same sequence. In cross-examination, he has admitted that neither he narrated the incident at the hotel of Ramesh nor at his home. Thaugh, he is known to them from child-hood. Hotel of Ramesh was the place where he used to go very often whenever he had some guest, he used to take them to the hotel of Ramesh. He further stated that he gave the statement after Narsingh, had come to his place alongwith police and he gave his statement on the next day. He also admitted that he is an accused in two cases where the offence against him is under S. 307 IPC. He further stated that he gave the statement after Narsingh, had come to his place alongwith police and he gave his statement on the next day. He also admitted that he is an accused in two cases where the offence against him is under S. 307 IPC. He has also stated that had Narsingh and police not came to his place, he would not have given any statement regarding this case. He stated that after his statement the statement of Narsingh, was recorded. They thereafter, went to the place of occurance and thereafter returned home. He has also admitted that he had neither narrated the incident to anyone nor even to the members of his family. He has also stated that he had not taken any passenger in his auto rikshaw on that day and so also Narsingh and both were together since 10.00 a.m. in the morning. He has also stated that he had seen the accused from the distance of about 100 paces The witness has also stated that he did not talk about the incident to anyone before or after he was examined by the police. He has been cross examined at a great length and had given evasive answers to many pertaining questions. 9. According to the statement of PW 20 Lakshman, who is the brother of deceased Ramesh, both these auto-rikshaw drivers, namely Narisingh and Shankar, are regularly visiting his hotel and have friendly relations with them. According to him Narsing and Shankar, both were present with him at the time of post-mortem of deceased Ramesh and both attended the funeral. Thus, it is established beyond any manner of doubt that both these witnesses were highly interested witnesses in as much as they had their regular stays at hotel of deceased Ramesh and witness Lakshman. They had been knowing each other. Not only that, they had even attended the funeral of the deceased. Hence, their statements have to be read carefully and require to be corroborated in material particulars Besides, their being interested witnesses, they are also chance witnesses as their presence at the place of occurrence in normal course was not expected. It is not the prosecution case that near the place of occurance there is any auto-rikshaw stand or that in normal course rikshaws stand there for any other purpose. It is not the prosecution case that near the place of occurance there is any auto-rikshaw stand or that in normal course rikshaws stand there for any other purpose. In the instant case, it is a strange conduct of the witnesses that both of them who are friendly, did not carry any passenger since morning and remained together throughout the day till then they saw the occurance at about 6.00 P M. This appears very un-natural that the two auto-rikshaw 1 drivers would remain together whole day without doing their own normal work & would per chance stand at the place where their friend's murder was likely to be committed. It is also surprising that despite the fact that they were friendly with Ramesh and they did not try to interven and even after deceased Ramesh fell-down neither tried to take him to hospital nor informed the police nor his brother Lakshman. Had these two witnesses been strangers or un-known to the deceased possibly, would have been feeling shy in going to the police station and putting their head in the crime. But in a case like the one where it is borne-out from the record that they are known to each other from child-hood and when-ever had there been any guest they would have taken him to hotel and in normal course also that was the place where they normally used to sit and it does not stand to reason that they would not at least inform Lakshman that his brother has been murdered. Their conduct is highly suspicious and their testimony has not been corroborated in any material particulars by any other witness who in normal course was available at the place of occurrence. It is an admitted case of the prosecution that there was a tea stall where the persons were sitting. There was a betel shop and a drilling machine but none of the witnesses from the locality or any shop-keeper near about has come forward to support the prosecution theory. The trial-court has relied upon 1 the testimony of these two witnesses and has sought corroboration from the statement of PW 3, Pradeep, who in our opinion, is not a better witness, as according to him Ramesh had advanced Rs. 1,000/- to accused Mukesh in his presence out of which Mukesh had already returned Rs. The trial-court has relied upon 1 the testimony of these two witnesses and has sought corroboration from the statement of PW 3, Pradeep, who in our opinion, is not a better witness, as according to him Ramesh had advanced Rs. 1,000/- to accused Mukesh in his presence out of which Mukesh had already returned Rs. 5,00/- to deceased Ramesh and it was only on a balance of Rs. 500/- that dispute was going on between the two. This witness had been fried of Ramesh and he was himself suspected in the case and was detained in the police station He had admitted in his cross-examination that he was kept at the police station for a night and day. He has also admitted that several other boys were brought to the police station as suspects and were interrogated. He has also admitted that at the time when he remained at police station various auto-rikshaw drivers were called at the police station. In our 1 opinion, this witness in no way corroborates the testimony of two eye witnesses. Lakshman is not admittedly not an eye witness and is a best witness to give out the circumstances that accused Kalu, had come to call Ramesh and while taking him stated that accused Mukesh will re-pay the amount of loan and for this he was calling him behind the State Bank of India. The story of demand of Rs. 1,000/- and paying of loan of Rs. 1,000/- is contradicted by the prosecution. As stated by PW 3, Pradeep, according to him, Rs. 500/- had already been paid to Ramesh. According to this witness in his statement in the Court, he had not stated of Mukesh's coming to his shop, as was stated in the first information report. This witness does not remember when his statements were recorded by the police. He also does not remember that he was scribe of Ex.P 22. He even does not remember as to when Ex P 22, was recorded. His statement in our opinion, in no way helps the case of the prosecution. The only evidence, in our opinion, which remains in the case now is the recovery of the knives admittedly from an open land accessible to all and sundry. He even does not remember as to when Ex P 22, was recorded. His statement in our opinion, in no way helps the case of the prosecution. The only evidence, in our opinion, which remains in the case now is the recovery of the knives admittedly from an open land accessible to all and sundry. Besides this, we are unable to appreciate as to why broken piece of knife article 21, which has been recovered from the place of occurrence and was blood stained, was not carefully lifted so as to get the finger prints on this and get them compared with the finger prints of the accused persons. Similarly, the handle of the knife which also had the blood marks on it was bound to have finger prints clearly visible of the persons who had handled it, and not connecting this evidence with the crime is a serious lapse in the investigation. 10. In view of the aforesaid circumstances, we need not go into the other evidence as we are not satisfied on the statements of the eye witnesses that the case is proved beyond reasonable doubt 11. The result of the aforesaid discussions is that both these appeals are allowed. The conviction and sentence passed against the accused appellants namely Mukesh and Kallu@ Nemichand, is set-aside and they are acquitted of the charge. They are in jail and shall be released forthwith if not required in any other case.Appeal allowed. *******