A. R. TIWARI, J. ( 1 ) BEING dissatisfied by the common judgment rendered in ST No. 213/90. ST No. 15191 and ST No. 43/91 on 31/3/19921 7/4/1992 by the 111rd Additional Sessions Judge, Ratlam, thereby convicting the appellant Mohd. Hanif for an offence punishable under section 302 I. P. C. and the appellants Mohd. Salim and Mohd. Jameel for offence punishable under section 302/34 I. P. C. and sentencing each of them 10 suffer imprisonment for life and to pay fine of Rs. 10,000. 00 and in default to undergo simple imprisonment of six months with a direction that the sum of Rs. 15,000. 00 be paid to the widow of the deceased Mumtaz Au 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 20/6/1990, the deceased and his son Shakir Ali (P. W. 10) had gone to attend the Court at Jaora. At about 11. 45 A. M. the appellants Mohd. Salim and Mohd. Jamed 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 (P. W. 10), who reported it immediately to his counsel, Abid Ali (P. W. 7) Shakir Ali (P. W. 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 perforated by Dr. V. V. Purohit (P. W. 4) who gave his report Ex. P/7. Spot map (Ex. P-1) 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 So No. 43/91) were committed for trial. The appellants Mohd. Salim and Mohd. Banil on 17/1/1991 and Mohd. Jameel on 14/2/1991 were charged under section 302/34 I. P. C. and in the alternative u/s. 302 I. P. C. to which they pleaded not guilty and claimed to be tried. On trial, they were convicted and sentenced as above. ( 3 ) SHRI Harbans Singh Oberoi, the learned counsel for the appellants querulously questioned the correctness of the impugned judgment and directed scathing attack against it. On trial, they were convicted and sentenced as above. ( 3 ) SHRI Harbans Singh Oberoi, 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 sale testimony of Shakir Ali (P. W. 10), the son of the deceased, which is not corroborated even by the testimony of Advocate Abid Ali (P. W. 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 cast 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 lebelled P. W. 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 P. W. 10 Shakir Ali ). Three pronged labels (relation-ship, enmity and solitariness) attached to P. W. 10 should put the court on guard to scan the evidence more cautiously. ( 6 ) BEFORE going into finer aspects of the ease, it is apt to notice some of the salient features emerging from the impugned judgment. These are extracted below: a) The material witness P. W. 7 Abid Ali, Advocate was interrogated after about 75 days from the date of alleged incident i. e. on 3/8/1990 and P. W. 12 Gajanand Sharma, the Investigating Officer offered no explanation, much less plausible one, with regard to this inordinate delay. (Para 25) b) Another eye witness P. W. 11 Mohd. Nasir too was interrogated only on 13/8/1990 i. e. after about 54 days from the date of incident (20. 6. 1990)- Para 42. P. W. 11 has been held to be a got up witness Para 56. He has been disbelieved and his testimony has been discarded. (Para 25) b) Another eye witness P. W. 11 Mohd. Nasir too was interrogated only on 13/8/1990 i. e. after about 54 days from the date of incident (20. 6. 1990)- Para 42. P. W. 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. D. W. 1), Civil Judge, Jaora was examined as a Court witness. Ex. P/15, the court proceedings of the day, seriously impairs the credibility of P. W. 10. (para 45/47 ). d) The appellant Jameel (D. W. 1) has examined himself on oath in disproof of the charges in terms of section 315 of the Code of Criminal Procedure. There does not appear to be any cogent reason to reject the place 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 P. W. 10 is at variance with the court proceedings dated 20. 6. 1990 (Ex. P/15) (Para 47 ). Even Ex. Pill 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. Pill (F. I. R) recites that P. W. 10 had gone with one Ibrahim (P. W. 2) 10 the Police Station but P. W. 2 does not support this. And one person as per Ex. P/11 is kept in reserve and is eventually withheld. ( 7 ) MOHD. Nasir (P. W. 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 P. W. 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 other, would choose to be so in active and nonchalant? His version in Court is not totally consistent with Ex. It is rather intriguing that a son, in the face of Such a brutal attack on his other, would choose to be so in active and nonchalant? His version in Court is not totally consistent with Ex. Pill and is in conflict with the record of the Court, Ex. P/15. It is pertinent to refer Union of India v. T. R. Varma, 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. Madanlal2, it was hold 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 arc 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. 1990 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 of section 311 Cr. P. C. (order sheet of 26/6/1991 may be perused) to the effect that Shakir (P. W. 10) stated that he has learnt about the murder of his father. It is proper to call out the material portion from Ex. P115 which reads as under: (Hindi Matter) Allowing some margin about the non-disclosure of the of assailants, statement about having 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 effort, to save him by treatment etc. and not towards Court. Moreover, P. W. 10 claims to have gone to Police Solution along with one Ibrahim (P. W. 2) but this witness is conspicuously silent on this aspect, who removed the dead body from the spot? Exh. P/1 or P/11 does not throw any light on this and further weakens the assertion of the prosecution. and not towards Court. Moreover, P. W. 10 claims to have gone to Police Solution along with one Ibrahim (P. W. 2) but this witness is conspicuously silent on this aspect, who removed the dead body from the spot? Exh. P/1 or P/11 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 P. W. 10 then learnt from whom? This statement is not only presumed in terms of section 114 of the Evidence Act but also proved to be correct by the Presiding Officer (C. D. W. 1) himself and this statement pulls the carpet below the feet of the prosecution case and delivers the dent beyond raids. 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 of Ex. P/is was required. ( 8 ) THIS makes P. W. 10 unreliable and serious infirmity. In re Vadivelu Thevars case3, their, lordships have ruled as under:generally speaking into oral testimony in this context may be classified into there 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, P. W. 10 appears to be wholly unreliable or at least partly unrealiable. 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 P. W. 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. There is no corroboration. Amidst the welter of agitated controversy with regard to the quality of the version of P. W. 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 burned under deep debris. The investigating agency, already criticised by the trial Court on counts more than on, 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 P. W. 10 Shakirali with apparent adroitness and alacrity begins with lodgment or F. I. R. (Ex. P/11) and becomes floppy on analysis with Ext. P/15. After all, alleged place of incident is a crowded locality close to the court. And alleged lace of incident is a crowed 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 P. W. 10, And can it be easily digested that even the counsel of P. W. 10 (P. W. 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 we to tell? These and host of other vital questions remain unanswered and we fact that real story remains untold nothing is in cross examination to suggest the P. W. 7 is telling lies or suppressing the truth. There is no other independent witness in the case. The version then says rather esoteric. ( 10 ) IT is, thus proper to remember the caution-given by In Re: Birsinghs case4, 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 eye-witnesses suffers from various infirmities and could be relied upon only if property corroborated. This rule however does not apply where the eye-witnesses suffers from various infirmities and could be relied upon only if property 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 F. I. R. Exh. P/11. The parties were under litigations. One would not normally seek ones victim in setting as alleged. In Sharad Birdhichand Sarda v. State of Maharashtra5, 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 by unnaturalities, prodigious in number of P. W. 10 is not even the cogent and convicting proof, much less higher one as enunciated. Doubt, remain undisputed. We are, thus, obliged to give benefit of doubt to the appellants. We cannot close our mind to the galore. Here is than P. W. 10 contradicted by Ex. 1/15, and unsupported even by P. W. 2 and P. W. 7. It is a clear case of unconvincing story unconvincingly told. The absence of any injury on P. W. 10 makes his presence extremely doubtful. He is, thus, not a natural witness. Consequently, we hold that the P. W. 10 fails to inspire confidence. The other evidence 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 appear and set aside the conviction and sentence of the appellants is recorded by the Trial Court and acquit then 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. Appeal allowed. .