JUDGMENT A.R. Tiwari, J.-- 1. Being dissatisfied by the common judgment rendered in ST No.213/90, ST No. 15/91 and ST No.43/91 on 31.3.9217.4.92 by the IIIrd Additional Sessions Judge, Ratlam, thereby convicting the appellant Mohd. Hanif for an offence punishable under section 302 IPC and the appellants Mohd. Salim and Mohd Jameel for offence punishable under section 302/34 IPC and sentencing each of them to suffer imprisonment for life and to pay fine of Rs. 10,000/- and in default to undergo simple imprisonment of six months with a direction that the sum of Rs. 15,000/- be paid to the widow of the deceased Mumtazali out of the fines so imposed, the appellants have preferred this appeal. 2. Adumbrated in brief, the prosecution story at the trial was that on 20.6.90, the deceased and his son Shakir Ali (PW 10) had gone to attend the Court at Jaora. At about 11.45 A.M. the appellants Mohd. Salim and Mohd. Jameel caught hold of the deceased and the appellant Mohd. Hanif mounted murderous attack by knife on the deceased. This incident was witnessed by Shakir ali (PW 10) , who reported it immediately to his counsel, Abid Ali (PW 7) Shakir Ali (PW 10) then on the advice of his counsel came to Police Station along with Ibrahim (P.W.2) and lodged the first information report (Exh. P/11) at Police Station, Jaora. The deceased succumbed to the injuries. The autopsy was performed by Dr. V.V. Purohit (P.W.4) who gave his report Ex.P/7. Spot map (Ex.P1) was prepared. The appellants were arrested on different dates and three separate cases (Mohd. Salim - ST No.213/90, Mohd. Hanif - ST No.15/91, and Mohd. Jameel ST No.43/91)were committed for trial. The appellants Mohd. Salim and Mohd. Hanif on 17.1.91 and Mohd. Jameel on 14.2.91 were charged under Sec.302/34 IPC and in the alternative u/s 302 IPC to which they pleaded not guilty and claimed to be tried. On trial, they were convicted and sentenced as above. 3. Shri Harbans Singh Uberoi, the learned counsel for the appellants querulously questioned the correctness of the impugned judgment and directed scathing attack against it. He urged that the conviction is based on the sole testimony of Shakari ali (PW 10), the son of the deceased, which is not corroborated even by the testimony of Advocate Abidali (PW 7). 3. Shri Harbans Singh Uberoi, the learned counsel for the appellants querulously questioned the correctness of the impugned judgment and directed scathing attack against it. He urged that the conviction is based on the sole testimony of Shakari ali (PW 10), the son of the deceased, which is not corroborated even by the testimony of Advocate Abidali (PW 7). PW 10, urges the counsel, is thus not wholly reliable and as such the trial Court fell into an error in recording conviction on the fulcrum of at least partly unreliable witnesses without proper corroboration from independent source. He thus, prayed that the conviction and sentence deserved to be vacated. 4. Shri G.S. Chouhan learned Dy. Government Advocate on the other hand, strenuously supported the judgment and labeled PW 10 as a natural and wholly reliable witness. The judgment, counsel submitted, did not warrant any interference. It was thus vigorously urged that the conviction merited to be maintained. 5. It was not disputed that the deceased died a homicidal death. But who did him to death is the moot question? It was also not disputed that parties are inimically disposed to each other due to civil and criminal litigation (Para 5 of PW 10 Shakir ali). Three pronged labels (relationship, enmity and solitariness) attached to PW 10 should put the Court on guard to scan the evidence more cautiously. 6. Before going into finer aspects of the case, it is apt to notice some of the salient features emerging from the impugned judgment. These are extracted below: (a) The material witness PW 7 Abid Ali, Advocate was interrogated after about 75 days from the date of alleged incident i.e. on 3.9.90 and PW 12 Gajanand Sharma, the Investing Officer offered no explanation much less plausible one, with regard to this inordinate delay. (Para 25) (b) Another eye witness PW 11 Mohd. Nasir too was interrogated only on 13.8.90 i.e. after about 54 days from the date of incident (20.6.90) -- Para 42. PW 11 has been held to be a got up witness -- Para 56. He has been disbelieved and his testimony has been discarded. (c) N.K. Porwal (C.DW 1), Civil Judge, Jaora was examined as a Court witness. Ex.P/15, the Court proceedings of the day, seriously impairs the credibility of PW 10. (Para 45/47). PW 11 has been held to be a got up witness -- Para 56. He has been disbelieved and his testimony has been discarded. (c) N.K. Porwal (C.DW 1), Civil Judge, Jaora was examined as a Court witness. Ex.P/15, the Court proceedings of the day, seriously impairs the credibility of PW 10. (Para 45/47). (d) The appellant Jameel (DW 1) has examined himself on oath in disproof of the charges in terms of Sec.315 of the Code of Criminal Procedure. There does not appear to be any cogent reason to reject the plea of alibi, particularly in view and in the face of defence witness and Ex-D/1 to D/6. If the participation of Jameel is doubtful then how can it be true about the other two? (e) The version of PW 10 is at variance with the Court proceedings dated 20.6.90 (Ex.P/15) (Para 47). Even Ex.P/11 faults in sequence of the story. (f) The investigation agency has been severely criticised. (Para 28,69). It has been observed that the evidence has been destroyed without particularising as to what was destroyed and in such state of affairs, who stands to gain in trial. (g) Exh.P/11 (FIR) recites that PW 10 had gone with one Ibrahim (PW 2) to the Police Station but PW 2 does not support this. And one person as per Ex.P/11 is kept in reserve and is eventually withheld. 7. Mohd. Nasir (PW 11) has been disbelieved by the trial Court. No other witness to the incident has been examined. The case, thus, hinges on the sole testimony of PW 10 Shakir Ali, who has obviously an axe to grind and can foist the charge on appellants if he is not really an eye witness and had to depend on his imagination. It is rather intriguing that a son, in the face of such a brutal attack on his father, would choose to be so inactive and nonchalant? His version in Court is not totally consistent with Ex.P/11 and is in conflict with the record of the Court, Ex.P/15. It is pertinent to refer AIR 1957 SC 882 (Union of India v. T.R. Verma) which observed that: "When there is a dispute as to what happened before a Court or tribunal, the statement of the Presiding Officer in regard to it is generally taken to be correct. It is pertinent to refer AIR 1957 SC 882 (Union of India v. T.R. Verma) which observed that: "When there is a dispute as to what happened before a Court or tribunal, the statement of the Presiding Officer in regard to it is generally taken to be correct. " Yet in another case, decided by a Single Bench of this Court (Moolchand v. Madanlal) 1965 JLJ 108 N, it was held that the statement of the Presiding Officer in the order sheet has to be presumed to be correct and heavy burden lies on the party disputing its correctness to prove the opposite of it. In the aforesaid decision it is observed that "There is a presumption that proceedings in a Court of Law are correctly recorded, and in the absence of any other material, it is not possible to accept the contention of the appellants that they were not at all heard in the first appellate Court." In Ex.P/15, Court proceeding of 20.6.90 deserving to be treated as sacrosanct, there is a statement of the Presiding Officer, examined in this case as a Court witness, obviously for just decision of the case in terms ofSec.311 Cr. P.C.(order sheet of 26.6.91 may be perused) to the effect that Shakir (PW 10) stated that he has learnt about the murder of his father. It is proper to call out the material portion from Ex.P/15 which reads as under: HINDI Allowing some margin about the non-disclosure of the names of assailants, statement about having learnt itself casts a cloud of suspicion on the entire warp and woof of the story. Exh.P/11 seems rather unnatural in that the son would go to the injured father for efforts to save him by treatment etc. and not towards Court. Moreover, PW 10 claims to have gone to Police Station alongwith one Ibrahim (PW 2) but this witness is conspicuously silent on this aspect, who removed the dead body from the spot? Exh.P/1 or Pill does not throw any light on this and further weakens the assertion of the prosecution. Now an eye witness is not expected to say that he has "learnt" about it. The question which naturally springs is that PW 10 then learnt from whom? Exh.P/1 or Pill does not throw any light on this and further weakens the assertion of the prosecution. Now an eye witness is not expected to say that he has "learnt" about it. The question which naturally springs is that PW 10 then learnt from whom? This statement is not only presumed in terms of Sec.114 of the Evidence Act but also proved to be correct by the Presiding Officer (C.DW 1) himself and this statement pulls the carpet below the feet of the prosecution case and delivers the dent beyond repair. The trial Judge dismissed this position perfunctorily and failed to assess the impact imposed by it. In fact the Presiding Officer should not have been dragged to the witness box. No proof ofEx.P/15 was required. 8. This makes PW 10 unreliable and introduces serious infirmity. In Vadivelu Thevar's case ( AIR 1957 SC 614 ), their Lordships have ruled as under: "Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial." In our assessment, PW 10 appears to be wholly unreliable or at least partly unreliable. His testimony is not above reproach and suspicion. There is no corroboration. Amidst the welter of agitated controversy with regard to the quality of the version of PW 10, we ourselves have read the entire statements of this witness and are left totally unimpressed. It is, thus, ex facie hazardous to conclude about the complicity of the appellants in the alleged crime on such a slender evidence. The evidence does not unerringly establish the participation of the appellants. 9. We find this to be a very strange case where truth has been so much polluted that falsehood has taken its place and truth burried under deep debris. The evidence does not unerringly establish the participation of the appellants. 9. We find this to be a very strange case where truth has been so much polluted that falsehood has taken its place and truth burried under deep debris. The investigating agency, already criticised by the trial Court on counts more than one, did precious little to ferret out the truth. But this weakness of investigation cannot be the strength of the prosecution. It is manifest that the judgment of the trial Court suffers from serious and substantial errors of law and legal infirmities. We notice that the dextrous drama staged by PW 10 Shakirali with apparent adroitness and alacrity begins with lodgment of FIR (Ex.P/11) and becomes floppy on analysis with Exh.P/15. After all, alleged place of incident is a crowded locality close to the Court. And alleged time is the working period of the Court. Can it be believed that such an incident would be witnessed only by PW 10? And can it be easily digested that even the counsel of PW 10 (PW 7) would turn hostile? Can it be ignored that Ex.P/15, written when the appellants were not even on the scene, has a different tale to tell? These and host of other vital questions remain unanswered. And we feel that real story remains untold. Nothing is elicited in cross-examination to suggest that PW 7 is telling lies, or suppressing the truth. There is no other independent witness in the case. The version then stays rather esoteric. 10. It is, thus proper to remember the caution - given by Birsingh 's case ( AIR 1978 SC 59 ) in the following terms: "It is not incumbent on the prosecution to examine each and every witness so as to multiply witnesses and burden the record. This rule, however, does not apply where the evidence of the eye- witnesses suffers from various infirmities and could be relied upon only if properly corroborated. Where all the eye-witnesses examined by the prosecution had serious animus against the accused and were interested in implicating the accused and neither independent witnesses were examined nor any reasonable explanation was given by the prosecution, the Court would be justified in drawing an adverse inference against the prosecution." 11. The appellants were tried for a capital charge. The back ground clearly showed the enmity even as per FIR Exh.P/11. The parties were under litigations. The appellants were tried for a capital charge. The back ground clearly showed the enmity even as per FIR Exh.P/11. The parties were under litigations. One would not normally seek one's victim in setting as alleged. In Sharad Birdhichand Sarda v. State of Maharashtra ( AIR 1984 SC 1622 ) there is reiteration of the celebrated dictum. It has been very aptly pointed out that suspicion, however, great it may be, cannot take place of legal proof and that "fouler the crime, higher the proof". Surely lone testimony marred by infirmities and unnatural ties, prodigious in number, of PW 10 is not even the cogent and convincing proof, much less higher one as enunciated. Doubts remain un-dispelled. We are, thus, obliged to give benefit of doubt to the appellants. We cannot close our mind to the truth. The narration seems to be• punctuated by "infirmities galore." Here is then PW 10 contradicted by Ex.P/15, and unsupported even by PW 2 and PW 7. It is a clear case of unconvincing story unconvincingly told. The absence of any injury on PW 10 makes his presence extremely doubtful. He is, thus, not a natural witness. Consequently, we hold that PW 10 fails to inspire confidence. The other evidence in the case pressed against the appellants is equally unconvincing and non- meritorious. We, thus, record our disagreement with the conclusions of the Trial Court which demonstrably are not on firm foundation. 12. In the result, we accept the appeal and set aside the conviction and sentence of the appellants as recorded by the Trial Court and acquit them of all the charges. The appellants are, thus, directed to be set at liberty forthwith unless wanted in other case. Fines, if paid, shall be refunded to the appellants.