G. P. MATHUR, J. Criminal Appeal No. 1535 of 1979 has been filed by Har Datt and Criminal Appeal No. 1536 of 979 has been filed by Shyam lal and Raghubir against the judgment and order dated 21-4-79 of IVth Additional Sessions Judge, Kanpur in S. T. No. 162 of 1978 whereby they have been convicted under Section 302, I. P. C. read with Section 34, I. P. C. and have been sentenced to imprisonment for life. 2. One Kamakhya Tamboli was resident of village Bairi Sawai, P. S. Shivali in the district of Kanpur. He had two sons namely Shiv Datt and Har Datt (accused) and two daughters Smt. Shanti and Smt. Shiv Dulari. Shyam lal and Raghubir accused are sons of Shiv Datt. Smt. Shanti and her son Rajjan lost life in the incident. P. W. 2 Nanhey lal is son of Smt. Shiv Dulari. 3. P. W. 1 Sher Ali, Chaukidar of village Bairi Sawai lodged a First Information Report at 6. 00 p. m. on 15- 1-77 at four miles distant police station Shivali stating that Rajjan and his mother Smt. Shanti resided in his village. Rajjans wife had gone to her parental home. The outer door of Rajjans house was locked and he and his mother were not visible since the morning of preceding day. A larger quantity of blood was lying in the courtyard of the house and it appeared that both of them had been murdered. There was enmity between Rajjan on one hand and three accused on the other hand on account of litigation over land which the former had lost. Rajjan was not giving possession of the land due to which the murder had been committed. The accused were absconding from the village. 4. The F. I. R. was lodged in presence of P. W. 2 Lallan Raj Station Officer, P. S. Shivali who came to the spot and commenced investigation. After completing the same, he submitted charge-sheet against all the three accused on 7-3-77. The case was committed to the Court of Sessions by the Chief Judicial Magistrate on 30-3-78. The accused were charged under Section 302/34, I. P. C. by the learned Sessions Judge to which they pleaded not guilty. The prosecution in support of its case examined nine witnesses in all. The accused in their statements under Section 313, Cr. The case was committed to the Court of Sessions by the Chief Judicial Magistrate on 30-3-78. The accused were charged under Section 302/34, I. P. C. by the learned Sessions Judge to which they pleaded not guilty. The prosecution in support of its case examined nine witnesses in all. The accused in their statements under Section 313, Cr. P. C. denied the prosecution case and pleaded that they had been implicated on account of enmity. Har Datt stated that when he came to village, he found the house to be locked. He then proceeded to Sasural of Rajjan and then went to P. S. Shivali alongwith his father-in-law and narrated the incident. The Station Officer came to the village alongwith him but subsequently obtained of report from the Chaukidar and sent him to jail. Shyam lal and Raghubir stated that no litigation between them and Rajjan took place. Their father died in the life- time of their grand father. After the death of their father, their mother remarried in Etawah. They went to their mothers place and started earning livelihood as labourers. They had come to the village to see their house and while they were sleeping in the night, the police arrested them. They had not received any share in the property of their father or grand father and that is why they had left the village. 5. There is no eye witness of the incident and the case against the accused is based upon circumstantial evidence. 6. The prosecution has given evidence to show that the accused had motive to commit the crime. P. W. 1 Sher Ali has stated that litigation regarding the land was fought between Shiv Datt (father of Shvam lal and Raghubir accused) and Rajjan-deceased which was decided in favour of Shiv Datt. Bui, Rajjan did not leave the possession of the land. When he was asked in cross-examination as to who informed him about the litigation, he stated that as he was residing in the same village he knew that the litigation regarding agricultural land was going on in Kanpur and the same was pending till a year before his statement. When cross-examined on behalf of Shyarn lal and Raghubir-accused, he stated that Shiv Dutt died about 20 years back. When cross-examined on behalf of Shyarn lal and Raghubir-accused, he stated that Shiv Dutt died about 20 years back. Later on he said that he had wrongly stated that litigation was fought with Shiv Datt and the correct fact is that Rajjan fought with Har Datt-accused and no litigation took place with Shiv Datt as he was dead nor with Shyam lal and Raghubir accused. The witness has contradicted himself regarding the litigation which is alleged to have taken place with Rajjan-deceased and thus his statement is not reliable. 7. P. W. 2 Nanhey lal has stated that litigation regarding land was fought between the accused on one hand and Rajjan deceased on the other hand which the latter lost and he did not leave possession of the land. Similarly P. W. 4 Krishna Kumar has stated that there was dispute regarding agricultural land between the accused and the deceased Rajjan. However, in cross-examination, he stated that there was no litigation with the accused Shyam lal and Raghubir and the same was with Har Datt-accused. This witness has also given a contradictory statement inasmuch as in his examination-in-chief, he stated that litigation was with all the accused, but in his cross-examination, he stated that the same was with Har Datt alone. The prosecution has not given any documentary evidence to show that any litigation took place between Rajjan-deceased on one hand and the accused on the other hand. If the statement of P. W. 1 and P. W. 4 to the effect that litigation was fought was correct, there was no difficulty with the prosecution to have filed docu mentary evidence regarding the crime. In view of the contradictory statements given by P. W. 1 Sher ali and P. W. 4 Krishna Kumar and in absence of any documentary evidence, we are not inclined to accept the prosecution case that there was enmity between the accused and Rajjan-deceased. It is, therefore, not established that the accused had any motive to commit the crime. It may be noticed at this stage that the accused and the deceased are closely related. Shanti was real sister of Har Datt. Similarly, she was real sister of the father of Shyam lal and Raghubir-accused. Unless, there was strong motive, the accused would not have committed the murder of their close relatives. 8. It may be noticed at this stage that the accused and the deceased are closely related. Shanti was real sister of Har Datt. Similarly, she was real sister of the father of Shyam lal and Raghubir-accused. Unless, there was strong motive, the accused would not have committed the murder of their close relatives. 8. Before the learned Sessions Judge, the prosecution tried to explain the non-filing of documentary evidence regarding litigation on the ground that in absence of any male member in the family of Rajjan the details of the case could not be gathered and therefore, no paper regarding the same could be filed. In our opinion, the explanation offered by the prosecution cannot at all be accepted. P. W. 1 Sher Ali has stated that he belonged to the same village and therefore, he knew about the litigation. P. W. 2 Nanhey lal is closely related to Rajjan-deceased as their mothers were real sister. In case, such litigation was really fought, he must have come to know some details about the same. P. W. 5 Lallan Rai, I. O. has not stated a word in his state ment to the effect that he made any attempt to find out the details of the litigation, but could not do so. In these circumstances, we are of the opinion that if such a litigation had really been fought, the prosecution would have easily filed documentary evidence regarding the same and in absence of any such evidence having been adduced, the only possible inference is that no such litigation was fought. 9. P. W. 5 Ram Sanehi has stated that in the night preceding the murder he was returning to his house from the flour mills at about 8. 00 p. m. While he was passing near the "bheet" (place where boils are grown) close to Tiraha, he saw Har Datt. Shyam lal and Raghubir talking amongst themselves and stating that in case Rajjan was murdered they would get possession over the field. Thereafter Har Datt said that he would tell such a plan by which the work may be achieved without any difficulty. He has further stated that there after he proceeded ahead and on the next day he heard that Rajjan and Shanti had been murdered. In his cross-examination he has stated that he heard about the murder at about 7. 00 or 8. He has further stated that there after he proceeded ahead and on the next day he heard that Rajjan and Shanti had been murdered. In his cross-examination he has stated that he heard about the murder at about 7. 00 or 8. 00 a. m. on following day and by that time news regarding the 4inurder had spread and many people were talking about the same. He also stated that he never went again to the flour mill for grinding wheat after the day he had heard the talks of the accused. The consistent case of the prosecution is that murder took place in the night inter vening 13th and I4th January. On 15th January Sher Ali Chaukidar steeped into the court-yard of the deceased after climbing the ladder saw the blood and then lodged the F. I. R. Thereafter, the police came, the lock was broken and bodies of two deceased were found inside the house. Thus, the murder was discovered on the second day and not on the following day proceeding the night in which the crime was committed. However, this witnesses has stated that he came to know of the murder at about 7 or 8 a. m. in the morning following the night in which he had heard the accused talking. His testimony is liable to be rejected on this ground alone, that apart, it appears highly improbable and unnatural that the accused who are uncle and nephew would talk about their so-called plan of committing the murder in an opsn place near Tiraha and not in the privacy of their own house. P. W. 1 Sher Ali has stated that all the accused lived together. In those circumstances, there talking in on open place near the road at about 8 p. m. on 13th January which is winter period, does not appear to be correct. The witness has further stated in Para 6 of his statement that after hearing the talks, he did not feel any suspi cion or anxiety. In Para 8, he has stated that hs was on talking terms with Rajjan and used to sit with him. In spite of this he did not take any steps to warn Rajjan about what he had heard. In Para 8, he has stated that hs was on talking terms with Rajjan and used to sit with him. In spite of this he did not take any steps to warn Rajjan about what he had heard. The contradictory statement given by P. W. 6 Ram Sanehi as well as his conduct in not warning Rajjan deceased about what he has heard leads to the inference that he is not speaking the truth and no reliance can be placed upon his statements. 10. P. W. 4 Krishna Kumar has stated that at about 9 or 10 p. m. in the night proceeding the murder, he was returning from the house of Radhey Shyam when he saw all the three accused entering the house of Rajjan deceased. The witness is resident of another village Bairi Daryab. In his cross-examination, he has stated that Radhey Shyam belonged to his family and he used to go to his house every day, although he had no work with him. He had gone to Radhey Shyams place at about 6/7 p. m. and stayed there for two hours with out doing anything. Normally in villages, people do not go on social visits in the night and especially in a winter night. His statement that he remained sitting with his relation Radhey Shyam till 5 or 10 p. m. without any work, therefore, does not appear to be truthful. The witness has also stated that there was enmity between the accused and the deceased. In these circumstances the fact that he saw the accused entering the house of deceased should have aroused his suspicion. However, he has stated in his cross-examination that he narrated about the incident to the investigating officer and then in the Court while giving statement and not to any one else. This again shows that he had seen the accused entering the house of deceased, he would have disclosed this fact when the murder was detected and would have also told about it to other persons. The statement of this witness does not at all inspire confidence and we do not consider it safe to rely upon his testimony. 11. P. W. 3 Gopi has stated that his house is near the house of the deceased. In the night he came out to make water. The statement of this witness does not at all inspire confidence and we do not consider it safe to rely upon his testimony. 11. P. W. 3 Gopi has stated that his house is near the house of the deceased. In the night he came out to make water. He saw the accused coming out from the house of deceased and after locking the same, they went to their own house. In his cross-examination he has stated that a civil case was fought between Kamakshya (father of Har Dutt and grand father of remaining two accused) on one hand and his father Ayodhya. It is, there fore, established that he is an enmical witness. He has stated in his cross- examination that he was present when P, W. 1 Sher Ali Chaukidar had peeped into the house of deceased by climbing a ladder and many people had got collected there. He has also stated that he disclosed about the locking of house by the accused for the first time to the Investigating Officer. In case this witness had really seen the accused locking the house of the deceased, this should have arouse his suspicion immediately. At any rate, he should have disclosed this fact immediately when the murder was detected by the Chaukidar and a crowd lias collected there. His non-disclosure of this fact at the first instance and giving such statement for the first time when the Investigating Officer had arrived at the scene shows that he is not speaking the. truth. In view of the fact that he is enimical witness and his unnantural conduct in not disclosing what he had seen immediately, it appears highly unsafe to place reliance upon his testimony. We arc accordingly of the opinion that the prosecution has failed to establish that one saw the accused locking the house of the deceased in the night. 12. P. W. 2 Nanhey lal has stated that he was keeping watch over his betel crop in the night. At about 4. 00 or 5. 00 a. m. when he was warming himself before fire, he saw all the three accused going towards village Paitha on the second day, that about 10. 12 a. m. he came to know that murder had been committed. In his cross-examination he has admitted that he is resident of village Barai P. S. Navral. 00 or 5. 00 a. m. when he was warming himself before fire, he saw all the three accused going towards village Paitha on the second day, that about 10. 12 a. m. he came to know that murder had been committed. In his cross-examination he has admitted that he is resident of village Barai P. S. Navral. His brother Arjun is married to the daughter of Shankar, a resident of village Bairi Sawai. He" was living with bis brother Arjun in village Bairi Sawai since four or five months before the incident although he or his brother did not own any land or house in the said village. He had taken betel field of Shanker Ram on lease for two years on payment of Rs, 100. However, he could not tell area of the field taken by him. He has admitted that he owned a house in his village Barai and also 26 bheet (betel field ). He further admitted that his brother Arjun had taken betel field on lease in village Bairi Sawai. On further cross- examination, he could not give the boundary or Khasra Number of the betel field in village Bairi Sawai which had been taken by him. At the end of his cross-examination he admitted that he had not gone to the house of Rajjan deceased even after he had learnt about his murder. The statement of this village witness shows that he was not actually present in the village. He is resident of village Bairi in another police station where he owns a house and betel field. There is no reason why he would leave his own village and came to another village and take betel field on lease. He could not even tell the area, boundary or Khasra number of the betel field taken on lease by him. His conduct of not going to Rajjans house even after having come to know that he had been murdered again raise a serious doubt about his presence in the village. Rajjans mother Smt. Shanti was real sister of his mother. It is impossible to believe tint though he was present in the village, yet he did not go to the house of his moasi and cousin even after learning that they had been murdered. Rajjans mother Smt. Shanti was real sister of his mother. It is impossible to believe tint though he was present in the village, yet he did not go to the house of his moasi and cousin even after learning that they had been murdered. After examining his evidence, we are satisfied that P. W. 2 Nanhey lal was not present in the village and he has given false statement of having been the accused leaving the village on the following morning. 13. P. W. 9 Dr. H. S. Bahadur had conducted/post-mortem on the bodies of deceased Rajjan and Smt. Shanti. He found sixteen incised wounds on the body of Rajjan and eleven incised wounds on the body of Smt. Shanti, P. W. 6 Chandra Singh, Head Constable has stated that Sher Ali had lodged the F. I. R. at 6. 00 p. m. on 15-1-1977 on the basis of which the case was registered. P. W. 7 Defendar Khan, Constable has staled that he brought the deadbodies from the spot to Sadar for the purpose of post-mortem and identified the same before the doctor. The testimony of these witnesses only proves the commis sion of the crime and lodging of the F. I. R. by Chaukidar. It does not con nect the accused with the crime in question. 14. P. W. 8 Lallan Rai has stated that he was S. O. of Police Station Shivali and he conducted the investigation of the case He collected plain and blood-stained earth and also recovered a blood-stained Gandas from the house of deceased. He also took in his possession plain and blood-stained earth and blood-stained patra from the house of the accused Shyam lal and Raghubir. In his cross-examination, he has stated that though he had reached the spot on 6. 30 p. m on 16-1-1977, he did not enter the house of deceased at that time. A dog squad had been summoned which came in the morning of 16-1-1977 and then the lock was broken. The dog after sniffing the deadbodies first went to Har Dattas house and then to the room of Shyam lal and Raghubir which was closed. He did not find any incriminating article in the house of Har Datta accused. A dog squad had been summoned which came in the morning of 16-1-1977 and then the lock was broken. The dog after sniffing the deadbodies first went to Har Dattas house and then to the room of Shyam lal and Raghubir which was closed. He did not find any incriminating article in the house of Har Datta accused. In his cross-examination he has admitted that he had not mentioned in the case diary this fact that dog sniffied at the door of the room of Shyam lal and Raghubir. 15. The prosecution has also tendered in evidence the report of Chemical Examiner which shows that blood was found on the earth and on the door apart from clothes and bedding of the deceased as well as Gandas found on the spot. The testimony of the Investigating Officer as well as the report of Chemical Examiner do not connect the accused with the crime in question. The learned Sessions Judge has placed reliance upon the fact that the dog went to the house of accused Har Datt after sniffing at the dead bodies and then sniffed at the door of room of accused Shyam lal and Raghubir. Except for the statement of P. W. 8 Lallan Rai, I. O. , there is no corroborative evidence on this point. Even assuming that the dog went to the house of the accused after sniffing the dead bodies. This fact cannot be taken into consideration as a circumstance against them. 16. We have carefully scrutinised the entire evidence on record. In our opinion, the testimony of P. W. 1 Sher Ali on the point of motive and that of P. W. 2 Nanhey Lal, P. W. 3 Gopi, P. W. 4 Krishna Kumar and P. W. 5 Ram Sanehi is not at all trustworthy for the reasons indicated in the earlier part if the judgment. The prosecution has miserably failed to prove any clinching circumstances against the accused to connect them with the crime in question. In these circumstances, the conviction of the appellants and the sentence imposed upon them are liable to be set aside. 17. Both the appeals are accordingly allowed. The conviction of the appellants under Section 302 read with Section 34, I. P. C. and sentence of imprisonment for life imposed by the learned Sessions Judge, Kanpur are set aside. Har Datt accused is on bail. He need not surrender. 17. Both the appeals are accordingly allowed. The conviction of the appellants under Section 302 read with Section 34, I. P. C. and sentence of imprisonment for life imposed by the learned Sessions Judge, Kanpur are set aside. Har Datt accused is on bail. He need not surrender. His bail bonds and sureties are discharged. Shyam lal and Raghubir accused of Criminal Appeal No. 1536 of 1979 are in jail. They shall be released forthwith unless wanted in some other case. Appeal allowed. .