JUDGMENT 1. - Two accused-appellants are sons of Umarao, who is the real brother of Bodan PW/1. Umarao, Bodan and two other brothers were having a joint well in village Rajgarh Police Station Rajgarh. Many cases were pending in between the accused-appellants on the one hand and Bodan on the other As per the case of the prosecution, on 12th July, 1990 at 8:00 or 8:30 A.M. Bodan had sent his son Kailash in search of she-buffalo. When he did not return for some time, it is alleged, Bodan PW/1 went in his search towards the well and there he saw that accused appellant Nadan and Meda were giving beating to him with lathi and knife. Nadan was having knife in his hand and Meda lathi. Each of them gave blows with the respective weapon to the deceased Kailash Bodan PW/1 raised an alarm. On hearing it, his wife-mother of the deceased Kailash namely Sarsa PW/2 also came on the spot. Accused persons are said to have made good the escape. Bodan PW/1 immediately went to the village and from a public booth gave a telephonic message to the police Station, Tehla, tehsil Alwar The said report was written at No 350. at 9:40 A.M. in the general diary. The SHO reached the spat and Parcha Bayan of Bodan was recorded. The usual investigation took place. The accused persons were arrested. In the statement of accused-appellant Nadan it is stated that he got recovered the knife which was blood-stained. It was seized and sealed. Blood-stained knife along with blood-stained soil, cloth etc. of the deceased were sent to the Director, Forensic Science Laboratory, Jaipur, who bad examined the same and vide his report Ex. P/9 found that they were stained with human blood. So far as knife is concerned, it was found to be stained with 'B' group blood. So also pieces of stones, blood smeared soil, control soil, chaku, Bushirt, Lugari etc. were found to be stained with blood. 2. The charge-sheet was filed. The accused persons pleaded not guilty and claimed to be tried The prosecution examined as many as 11 witnesses. After close of the prosecution evidence each of the accused persons was examined under Section 313, Criminal Procedure Code to explain the circumstances alleged against each of the accused persons. They stood on a bare plea of denial. The accused persons pleaded not guilty and claimed to be tried The prosecution examined as many as 11 witnesses. After close of the prosecution evidence each of the accused persons was examined under Section 313, Criminal Procedure Code to explain the circumstances alleged against each of the accused persons. They stood on a bare plea of denial. Accused Nadan came out with the case that neither he gave any information for recovery of knife, nor got recovered any knife. According to him, he has been falsely implicated because of previous enmity. The accused persons did not examine any person in defence. The learned Addl. Sessions Judge No. I, Alwar convicted each of the accused under his judgment dated 13th November, 1992 under Section 302/74, Indian Penal Code and each of them was sentenced to imprisonment for life, and to pay a fine of Rs 2000/- and in default to suffer five months' simple imprisonment. The learned Addl. Sessions Judge further ordered that out of the amount of fine realised, a sum of Rs. 3.000/- will be paid to the father of deceased Kailash as compensation. 3. In assailing the judgment of the learned Addl. Sessions Judge, the learned counsel for the appellants has contended that even if the case of the prosecution is admitted that there was enmity between the accused persons on the one hand and Bodan (PW/l) on the other, but the leaned Addi Sessions Judge has placed reliance on the statement of Sarsa (PW/2) wife of Bodan (PW 1) and mothor of deceased Ka dash; but she was not an eye-witness to the occurrence and, thus, reliance has been wrongly placed on her statement. The learned counsel for the appellants contends that the case rests on the solitary statement of Bodan (PW/1) and he has made imprisonment on the previous statement made in the trial Court and has introduced his own wife as an eye-witness when in fact she was not an eye-witness. Ranjeeta and Prabhudayal's presence was stated by Bodan (PW/1) on the soot when they reside in other village which is 5.6 kosh away from the place of occurrence. The learned counsel for the appellants has therefore, contended that Bodan cannot he said to be a witness of sterling worth and classified as a reliable witness. Ranjeeta and Prabhudayal's presence was stated by Bodan (PW/1) on the soot when they reside in other village which is 5.6 kosh away from the place of occurrence. The learned counsel for the appellants has therefore, contended that Bodan cannot he said to be a witness of sterling worth and classified as a reliable witness. Therefore on his sole testimony, it would not be safe to convict each of the appellants and sentence to capital punishment. The learned Addl. Public Prosecutor has supported the Judgment of the learned Addl. Sessions Judge 4. So far as Sarsa (PW 2) is concerned, we are of the opinion that the learned Addl. Sessions Judge has wrongly placed reliance on her statement as she does not appear to be an eye.witness and she has been wrongly produced as eye.witness. 5. Before we examine this question, it is necessary to see whether Ex. 1 can be taken as a First Information Report It has been contended by the learned counsel for the accused-appellants that as per the case of the prosecution a telephonic message was given in the police station, Tehla. District Alwar on 12th July. 1990, at 9.40 A.M. and the same has been entered in the general diary at Sr No. 350. A perusal of the said report will show that no case for taking cognizance has been made out inasmuch as accused's names are not mentioned at all. The learned counsel contends that in telephonic message First Information Report should have been entered. Parcha Bayan and First Information Report are hit by Section 162 of the Code of Criminal Procedure. We are in agreement with the learned counsel for the appellants. It would be clear from a reading of Ex. P 1 that it contains information about the commission of congnizible offence inasmuch as it contains the names of deceased Kailash as well as accused persons and Nadan who has lodged the report. Therefore once Ex P 1 is said to be the First Information Report, the parcha-bayan can only be a statement under Section 161, Criminal Procedure Code, which is signed It can be said to hit by Section 162, Criminal Procedure Code. Be that it as may, even if Ex. Therefore once Ex P 1 is said to be the First Information Report, the parcha-bayan can only be a statement under Section 161, Criminal Procedure Code, which is signed It can be said to hit by Section 162, Criminal Procedure Code. Be that it as may, even if Ex. P 1 is treated to be First Information Report it can be said that it contains the names of both the accused persons who are said to have caused the death of Kailash with knife and lathi though it is not mentioned as to which of the accused was armed with which of the weapon and that the accused appellants were armed with weapons lathi or knife. In Ex.P 11 it is not stated that Sarsa (PW 2) had witnessed the occurrence. If Ex. P 11 is read along with Ex.P 1, it is clear that Sarsa PW 2 was not an eye-witness to the occurrence. It would not be proper to say that Sarsa (PW 2) was an eye-witness to the occurrence. Though in the Court Sarsa PW 2 professes to be an eye-witness. but if we look at her statement in light of her cross-examination and peruse her statement Ex .D 2, recorded under Section 161, Criminal Procedure Code there can be no doubt that she was not an eye-witness. She was confronted with her statement under Section 161, Criminal Procedure Code. A perusal of the portion with which she was confronted will show that in portion E to F, it has been stated by her that she asked her husband in the way and inquired of him, then it was stated by her husband that Nadan and Meda were giving beating to Kailash with knife and lathi. We I ate, therefore, of the opinion that Sarsa (PW 2) was not an eye-witness to the occurrence. Therefore, the trial Court committed a mistake is treating I her as an- eyewitness and placing reliance on her statement. Now, there remains the statement of Bodan (PW 1) who is the father of the deceased Kailash. He has stated that the accused persons are his brother's sons' (Umarao). It has come in the statement of Bodan (PW 1) that there is an enmity between him the accused persons on the other hand. Now, there remains the statement of Bodan (PW 1) who is the father of the deceased Kailash. He has stated that the accused persons are his brother's sons' (Umarao). It has come in the statement of Bodan (PW 1) that there is an enmity between him the accused persons on the other hand. The accused had killed his brother's son Ghayal and then there was further case in which he too was beaten by the accused persons and criminal cases are pending. For these reasons the accused persons hear enmity with him. After some days the accused persons beat him and did not allow him to plough his field, for the last three years and the land remained barren. Thus. it can he said that he is not only the father of tie deceased Kailash but also the relation of the accused persons and Bodan (PW 1) were strained and criminal cases are going on. Bodan (PW 1) has no doubt stated that both the accused persons Nadan and Meda being armed with knife and lath gave blows to Kailash. As per his statement, Kailash left the house at 8:00 A M. to search she-buffalo, who had gone from the house Kailash was 25 years of age, and was fully grownup. According to the learned counsel if as is stated by Bodan (PW1) he had gone in search of Kailash, it would not be possible for him to go in search after his son has gone in search of she buffalo. Learned counsel contends that there is enmity between them and some criminal cases are going on. According to the learned counsel for the accused-appellants, if the statement of Bodan (PW 1) is looked in the light of the medical report, according to him, deceased could not have received the injuries which were found on his person. He further contends that Bodan (PW I) has introduced his wife as eye-witness as also his son-in-law and his son-in-law's son as eye-witnesses. Their names do not find place in the First Information Report. Therefore, no reliance can be placed on their testimony. At any rate, it would not be safe to punish the accused persons with capital punishment on the sole testimony unless corroborated by some evidence on record. 6. A look at the post-mortem report Ex. P/6 as well as the statement of Dr. Therefore, no reliance can be placed on their testimony. At any rate, it would not be safe to punish the accused persons with capital punishment on the sole testimony unless corroborated by some evidence on record. 6. A look at the post-mortem report Ex. P/6 as well as the statement of Dr. Mohan Lat (PW/4) would show that the Doctor found two injuries (1) incised wound of 5 cm x 3 cm x mouth sub mandible region both left and right same size; (2) incised wound of 7 cm x 5 cm on dorsal side of right hand (3) Lacerated wound of 2 cm 3 x cm in nasal septem; fracture of nasal bone. Doctor has also found: (a) Bruise 3 cms x 4 cm mid of anterior neck; fracture of thyriod bone; fracture of service cranial joint; fracture of 2nd bone from body (b) Bruises 15 cms x 3 cm left verticle side of chest 12 cm x 2 cm right cervicle side of chest 10 cm x 2 cm mid of chest in between the right and left ribs. (c) Bruise 5 cm x 3 cm right sapalan region of back (d) Bruise 6 cm x 2 cm anterio-lateral of right deltoid region (e) Fracture of mid of right clavicle hone (f)bruise right 3rd lumber region round shape by blunt weapon. 7. A look at the injuries on chest, nose shows that it has been described as lacerated one. As per the statement of Bodan, accused Nadan was having knife in his hand Therefore, it can he said that so far as the injuries to nose is concerned they appear to have been caused by blunt weapon. Learned counsel for the accused-appellants wants to emphasise on the basis of the post-mortem report that the occurrence could not have taken place in confirmity with the medical evidence itself. It is contrary to the medical evidence. So far as some injuries are concerned, according to the learned counsel, Bodan was not an eye-witness to the occurrence. The occurrence could have taken place in some other manner at the hands of some other persons. Possibility of the occurrence having taken place in some other way can not be excluded and because of enmity between the accused persons and Bodan, the possibility of falsely implicating the accused persons cannot , he excluded. 8. The occurrence could have taken place in some other manner at the hands of some other persons. Possibility of the occurrence having taken place in some other way can not be excluded and because of enmity between the accused persons and Bodan, the possibility of falsely implicating the accused persons cannot , he excluded. 8. The argument of the learned counsel for the accused-appellants cannot be brushed aside out-right. The fact of the injury on the nose which is lacerated one goes to show that the injury was-not and could not have been caused by sharp-edged weapon like knife. Therefore, the statement of Bodan (PW/1) that the injury was caused by a knife does not appear to be correct. Bodan (PW/1) has introduced by wife Smt. Sarsa (PW/2) as an eye-witness and we have found that she had not witnessed the occurrence and has also introduced two of persons Ranjeeta and Prabhu Dayal his son-in-law and his son-in-law's son as the persons who came to the spot when, in fact, they live in a village 5-6 kos away. We are, therefore, of the opinion that the statement of Bodan (PW/1) is not of sterling worth, which cannot be, relied upon to convict the accused-appellants under section 302/34, Indian Penal Code Therefore, we extend benefit of doubt to the accused-appellants. 9. Consequently, we allow this appeal. set aside the conviction and sentence awarded under Section 302/34, Indian Penal Code. They are acquitted of the offence. They are in jail. They be released forwith, if not required in any other case.Appeal allowed. *******