Honble VERMA, J.—Learned Additional Sessions Judge, Raisinghnagar had found guilty Sher Singh of offence under Section 302, I.P.C. for committing twin murders, one of his wife Kartaro and the other of his son Nanak. The learned Judge has imposed upon the convict the extreme penalty of death. He has made D.B. Criminal Reference No. 3/1992 for confirmation of the death sentence. Convict Sher Singh has filed D.B. Criminal Jail Appeal No. 387/1992, whereby he challenges the correctness and legality of his conviction and the sentence passed upon him. The murder reference and the jail appeal have been heard together and are being disposed of by a common judgment. (2). The prosecution story is that Sher Singh was resident of village PM I. Smt. Kartaro was his legally wedded wife and Nanak Ram was his son. Nanak Ram was married to Smt. Veero (P.W.2). Sher Singh owned about 25 bighas of land at village PM I. Three years prior to the alleged occurrence, Sher Singh divided his land and gave 10 bighas of the same to Nanak Ram and retained the remaining land with him. Sher Singh and Nanak Ram started separate cultivation of the two parcels of land. The appellant used to reside in a Dhani built on this land. On being separated, Nanak Ram built a separate Dhani on the land given to him and Nanak Ram an his wife Veero (P.W.2) aforesaid started living separately from Sher Singh in this newly constructed Dhani. Sher Singh and his wife Kartaro did not enjoy good relations and hence Kartaro started living with her son and daughter-in-law on the new dhani built by her son. (3). The prosecution case is that Veero (P.W.2) originally belonged to village 7 KND, where her parents used to live with their family. Veero was pregnant during the relevant period. Hence, on 7.6.1991 her mother Dhanno (P.W.5) and brothers Dayal Ram (P.W. 3) and Pilla Ram (P.W.4) had come to visit her at village PM 1. They had an overnight stay at the place of Veero. On the morning of 8.6.91 at about 7 a.m. Sher Singh came to the Dhani of Nanak Ram. Sher Singh was armed with a gun and also carried an axe. Veero was preparing tea at that time while Nanak Ram, Dhanna, Dayal Ram, Pilla Ram and Kartaro were sitting nearby. They had an overnight stay at the place of Veero. On the morning of 8.6.91 at about 7 a.m. Sher Singh came to the Dhani of Nanak Ram. Sher Singh was armed with a gun and also carried an axe. Veero was preparing tea at that time while Nanak Ram, Dhanna, Dayal Ram, Pilla Ram and Kartaro were sitting nearby. Sher Singh all of a sudden fired gun shots at Nanak Ram, killing him on the spot. He, then inflicted axe blows on Kartaro who fell down and started bleeding. Veero and her mother and brothers raised an alarm but nobody came there. Sher Singh, thereafter, walked away towards his Dhani with gun and axe on his hands. (4). The prosecution story further is that Veero along with Dayal Ram went the same day to Police Station Rawla at a distance of 15 kilometres and lodged an oral report with S.H.O. Premnath (P.W.7) at about 11 a.m. Shri Premnath got the report Ex.D. 1 recorded and registered a case under section 302-307 I.P.C. He recorded the statement of Smt. Veero and proceeded to the scene of occurrence along with a photographer and Dr. Balwant Singh. He got the scene of occurrence photographed. He, then inspected the site and prepared site plan Ex.P. 5. He found the dead body of Nanak lying in the aangan of letters dhani. He examined the dead body and prepared memo Ex.P. 6 and Panchnama Ex.P. 7 in this regard. Smt. Kartaro was also lying nearby in an injured condition. Premnath recovered blood stained and control soil from the spot and sealed them separately vide memos Ex.P. 8 and E.P. 9. Dr. Balwant Singh conducted autopsy on the dead body of Nanak at the spot, the same day at 1. p.m. He found as many as six wounds of entry of gun pellets on the body of deceased Nanak Ram and an equal number of. wounds of exit, details whereof were noted by him in the postmortem report Ex.P. 1. He found the following injuries on Nanaks person: 1. Lacerated wound (Entrance) 3x2x2cm on Rt. iliac fossa near symphysis pubre, margin inverted no blackening, no tattooing, No singing of hairs, Runs obliquely downward through inguinal canal in it. side of scrotum. Communicate with exit wound (Lacerated) 4-1/2 + x 3-1/2 + cm on left side of scrotum, left testes crushed and protruded outside through . Lacerated wound (Entrance) 3x2x2cm on Rt. iliac fossa near symphysis pubre, margin inverted no blackening, no tattooing, No singing of hairs, Runs obliquely downward through inguinal canal in it. side of scrotum. Communicate with exit wound (Lacerated) 4-1/2 + x 3-1/2 + cm on left side of scrotum, left testes crushed and protruded outside through . exit wound. Margins are lacerated and everted. Clotted blood present on both entrance and exit wound, Grievous, Firearm within 24 hrs. 2. Lacerated wound (Entrance) 3x2cm 25cm lateral side of Rt. Bauttock No blackening no tattooing, no singing of hairs, Run Transverse, oblique downward in muscular part, Margins are inverted, and Communicates with lacerated wound (Exit) 4x2 cm on ant. of Rt. Thigh upper l/3rd part. Clotted blood present on both Entrance and Exit Wounds Grievous firearm, within 24 hrs. 3. Lacerated wound (Entrance) 3x2cmx27cm on lateral side of Rt. Bauttock, No Blackening, no tattooing, no singing of hairs, margin inverted. Runs obliquely downward and communicates with lacerated wound (Exit) 4x3 cm on Medial side of Rt. Thigh upper 1/3. margin are everted, Grievous firearm, duration within 24 Hrs. 4. Lacerated wound (Entrance) 3x2x23cm on lateral side of Rt. Thigh, margin inverted, No blackening. No singing of Hairs, No tattooing. Rum Transversely and reflected posteriorly after causing fracture II of femur, communicates with lacerated wound (Exit) 4x3cm on post side of Rt. Thigh mid 1/3. margin everted, Grievous, firearm duration within 24 hrs. Clotted Blood present on both Entrance and Exit wounds 5. Lacerated wound (Entrance) 3x2cmx24cm on perineum, margins inverted. No. blackening, no singing of hair, No tattooing, Runs obliquely downward, Transversely post communicates with lacerated wound (Exit) 4x3cm on post of left Thigh slight laterally upper 1/3, margins Clotted blood on Both wounds, Grievous, firearm duration within 24 Hrs. 6. Lacerated wound (Entrance) 3x2cmx21cm on post of left Thigh upper 1/3, margin inverted, No blackening, No tattooing, No singing of hairs, Runs obliquely, medially, upwards then communicates with lacerated wound (Exit) 4x3cm on Ant. f 1t. Thigh upper 1/3. Margin everted, clotted Blood on Both wounds Present, Grievous, Fire arm, Duration within 24 Hrs. 7. Lacerated wound 4x2- + x2cm on left side of parietal area of scalp. Underlying Bone is intact. Simple-Blunt, duration within 24 Hrs." According to Dr. f 1t. Thigh upper 1/3. Margin everted, clotted Blood on Both wounds Present, Grievous, Fire arm, Duration within 24 Hrs. 7. Lacerated wound 4x2- + x2cm on left side of parietal area of scalp. Underlying Bone is intact. Simple-Blunt, duration within 24 Hrs." According to Dr. Balwant Singh, Nanak Ram had died due to haemorrhage and shock caused by gun shot injuries, all of which were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. (5). After the post-mortem was over, Premnath recovered the blood soaked wearing apparel of Nanak Ram and one kada and sealed them separately vide Ex.P. 10 and Ex.P. 11 respectively. He got Smt. Kartaro removed to P.H.C., Rawla for treatment. Dr. Balwant Singh examined Smt. Kartaro on 8.6.91 and found as many as nine injuries on her person. She was unconscious. Out of 9 injuries, one injury on the head was grievous and was caused by sharp object. All other injuries were simple, caused by sharp object. An injury report Ex.P. 2 was prepared in this regard. Kartaro died in the hospital on 10.6.91 at 3.30 p.m. Dr. Balwant Singh sent intimation of this death (Ex.P.3) to S.H.O. Rawla the same day. (6). Upon receiving intimation Ex.P. 3, Premnath proceeded to the hospital and examined the dead body of Smt. Kartaro and prepared memo Ex.P. 21. He also prepared inquest report Ex.P. 12. (7). The same day i.e. on 10.6.91, at the request of police, Dr. Balwant Singh made post-mortem examination of Smt. Kartaro. According to Dr. Balwant Singh Smt. Kartaro died due to subdural haemorrhage due to ante mortem multiple injuries on her scalp. Dr. Singh prepared post-mortem report Ex.P. 4 in this regard. He found following injuries on her person: — 1. Incised wound 9x3cmxBone deep, on left side of forehead Extending to left parietal area of scalp with linear fracture of parietal bone (1t), Grievous-sharp, Duration within 3 days longitudinal. 2. Incised wound 10x3x2cm on Mind of scalp longitudinally simple- sharp, Duration within 3 days. 3. Incised wound 8x3x2cm on Rt. Occipital area of scalp, simple shart, within 3 days. 4. Incised wound 4x3x2cm on left occipital area of scalp simple sharp, within 3 days longitudinally. 5. Incised wound 2-x9x3x2 cm on left Hand palmer surface simple- sharp, within 3 days transverse. 6. 2-1/2 x2 x 1 cm on Rt. Forearm mid 1/3 lat. 3. Incised wound 8x3x2cm on Rt. Occipital area of scalp, simple shart, within 3 days. 4. Incised wound 4x3x2cm on left occipital area of scalp simple sharp, within 3 days longitudinally. 5. Incised wound 2-x9x3x2 cm on left Hand palmer surface simple- sharp, within 3 days transverse. 6. 2-1/2 x2 x 1 cm on Rt. Forearm mid 1/3 lat. simple, sharp, within 3 days, Transverse. 7. Incised wound 7x3x- Rt. Clavicular area, vertical simple, Sharp within 3 days. 8. Lacerated wound 4x3x1/2 Rt. Ear, simple blunt within 3 days, longitudinal 9. Incised wound 5x3x2 cm on left Inguinal area oblique within 3 days." According to Dr. Balwant Singh, injury No.1 on the head was sufficient to cause death in the ordinary course of nature. (8). After the post-mortem examination was over, Shri Premnath took in his possession the wearing apparel of Smt. Kartaro and duly sealed them vide memo Ex.P. 13. He also recovered one silver bangle of Smt. Kartaro from her person and duly sealed the same vide Ex.P. 14. (9). During the course of investigation, Premnath recorded statements of various witnesses. (10). The prosecution story further is that Premnath arrested the accused appellant Sher Singh on 11.6.91. He recovered the blood stained wearing apparel of the accused-appellant found on the appellants person. Certain other articles were also recovered. Memo Ex.P. 22 was prepared in this connection. The wearing apparel which consisted of one shirt and one chadar were duly sealed and Ex.P. 23 was prepared. At the instance of the accused- appellant, an axe and a muzzle loading gun were recovered and duly sealed and memos Ex.P. 15 and Ex.P. 17 were respectively prepared. The various articles recovered during the investigation were duly sent to the State Forensic Science Laboratory, Jaipur and report Ex.P. 26 was received in this regard. After completion of due formalities of the investigation, the accused-appellant was challaned before the Munsif & Judicial Magistrate, Anoopgarh for offences under section 302, I.P.C. and 27 of the Indian Arms Act. The learned Magistrate duly committed the accused appellant to the Court of Sessions and the learned Addl. Sessions Judge, Raisingh-nagar duly tried him on the said charges, after framing necessary charges, to which accused appellant pleaded not guilty. (11). At the trial, prosecution examined as many as seven witnesses. Relevant documentary evidence was also adduced. The learned Magistrate duly committed the accused appellant to the Court of Sessions and the learned Addl. Sessions Judge, Raisingh-nagar duly tried him on the said charges, after framing necessary charges, to which accused appellant pleaded not guilty. (11). At the trial, prosecution examined as many as seven witnesses. Relevant documentary evidence was also adduced. In his statement recorded under Section 313, Cr.P.C., the accused-appellant denied his complicity in the crime and stated that he had gone out of village the previous night. He returned on the fateful morning and saw his son lying dead. He also saw his wife lying in an injured condition. He went and reported the matter to the police, upon which the police and doctor came there. Smt. Veero was away that day at her parents village and the police sent a jeep and called Smt. Veero and her relations from village 7 KND. A false case was foisted upon him with a view to grab his land. The accused-appellant, however, did not lead any evidence in defence. (11A). The learned trial Judge, after hearing both the sides, found the defence story to be unworthy of credit and discarded the same. He, thereafter, discussed the prosecution story to be well established and convicted and sentenced the appellant as stated above. He made a reference for the confirmation of death sentence under section 366 of the Code of Criminal Procedure. As stated already, appellant has filed the appeal against his conviction and sentence. (12). Shri M.L. Garg, for the appellant has severely criticised the judgment of the learned trial Judge and has urged that learned trial Judge has betrayed utter ignorance of the basic principle of criminal law. The learned trial Judge first of all discussed the defence case and found it unworthy of belief. He then observed that the burden of proving the innocence had shifted to the accused-appellant. Thereafter, he discussed the prosecution evidence and found the prosecution story worthy of credence. It is urged that this faulty approach has vitiated the judgment of the learned trial Judge and hence this Court must examine the prosecution evidence afresh with minutest care and caution. He then observed that the burden of proving the innocence had shifted to the accused-appellant. Thereafter, he discussed the prosecution evidence and found the prosecution story worthy of credence. It is urged that this faulty approach has vitiated the judgment of the learned trial Judge and hence this Court must examine the prosecution evidence afresh with minutest care and caution. On merit, it is urged that the prosecution has failed to prove its case beyond reasonable doubt and the appeal of the accused appellant deserves to be accepted and he deserves to be acquitted of charge under section 302, I.P.C. and reference for confirmation of death sentence should be rejected. Learned Public Prosecutor could not support the approach of the learned trial Judge but urged that due to faulty approach of the trial Judge, no prejudice had been caused to the appellant and the prosecution has proved the charge beyond reasonable doubt and the conviction and sentence passed upon the accused appellant do not call for any interference and the death sentence passed upon the appellant should be confirmed. (13). We have considered the rival contentions and have carefully perused the record. We have no hesitation in arriving at the conclusion that Smt. Kartaro and Nanak did not die a natural death. Nanak Ram died a homicidal death on 8.6.91 or thereabout. Smt. Kartaro died on 10.6.91 as result of injuries sustained by her on 8.6.91. The assailant or the assailants was/were armed at least with a gun and a sharp cutting instrument. Nanak Ram died of gun shot injuries, which were ante-mortem in nature and were sufficient in the ordinary course of nature to cause death. Smt. Kartaro died of ante-mortem injuries caused to her by a sharp weapon and out of the injuries described already injury No. 1 was fatal and was sufficient to cause death in the ordinary course of things. (14). We have, however, to examine if the learned trial court arrived at a correct conclusion that it was the appellant Sher Singh who committed the twin diabolically murders. Here, we may see if the learned trial court approached the whole issue in its correct perspective. It is trite law that burden of proving its case squarely rests upon the prosecution and this burden never shifts. Here, we may see if the learned trial court approached the whole issue in its correct perspective. It is trite law that burden of proving its case squarely rests upon the prosecution and this burden never shifts. Before discussing the prosecution evidence, the learned trial Judge in para 7 of his judgment addressed himself to the truthfulness or otherwise of the defence version. After discussing the defence version, he discarded the same and observed that it was for the accused to prove his innocence. It was thereafter that he discussed the prosecution evidence and held the charge under section 302, I.P.C. proved. The our dismay and regret, the learned trial Judge, who is a judicial officer of substantial standing has betrayed complete ignorance of the elementary and cardinal principle of criminal jurisprudence, which requires the prosecution to stand on its own legs. Learned trial Judge ought to have first discussed if the prosecution had succeeded in proving its case. Only thereafter, he should have looked into the defence version to see if the same was acceptable or not. To examine the defence version before examining the prosecution story is to put the cart before the horse. In Moti & Ors. vs. State (1), the learned trial Judge had committed a similar error and a division bench of this Court observed (p. 390) : "We feel bound to point out that the manner in which the learned trial Judge dealt with this case, leaves a lot to be desired. If there is one principle which is more well established than any other, in our criminal jurisprudence, it is this that the burden of proving the prosecution case rests through out on the prosecution and hardly ever shifts to the accused. That being so, the learned Judge should have in the first instance examined the case for the prosecution uninfluenced by what the defence was and then taken into consideration the case of the accused and thereafter come to a final conclusion on the whole of the evidence having been so considered, whether the prosecution has succeeded in proving the case of the accused without any reasonable doubt. We have no hesitation in saying that the manner in which the learned Judge addressed himself to the case before him by pronouncing his verdict on the case of the defence first, he has laid himself open to a serious attack for which there is no satisfactory answer." (15). A similar criticism was levelled against the approach of the High Court in the case of Gajendra Singh vs. State of U.P. (2), wherein their Lordships of the apex Court observed : — "It seems to us that the High Court lured by the attractive ingenious, daring and dexterous defence taken by the accused proceeded to deal with the defence case even before giving its finding on the truth or otherwise of the prosecution case against the accused. Such an intertwined approach appears to have provided sufficient material for argument by the learned counsel for the appellant that the High Court had made a completely wrong approach to the case put forward by the prosecution in the instant appeal. After going through the judgment of the High Court we are, however, satisfied that the discussion of the defence case before the prosecution case has not resulted in any material prejudice to the accused and therefore although the High Court should have dealt with the prosecution case before touching the defence version, the error committed by the High Court is of no consequence." (16). We need not pursue this point any further because we propose to deal with the prosecution case first, uninfluenced by what the defence version is or had been. In doing so, we have kept an open mind and have not been influenced in the least by what the learned trial Judge has said. We have examined the prosecution with circumspection and in the minutest of details. (17). We may briefly notice here the testimony of alleged eye-witnesses Veero, her brother Dayala Ram and Pilloo and mother Dhanno. The gist of their evidence is that Smt. Veero was pregnant hence Dayala Ram, Pilloo Ram and Dhanno had come to visit her a day ago. On the fateful morning, they were taking tea along with Nanak and Kartaro. All of a sudden the appellant came armed with a gun and an axe. He fired at Nanak Ram and thereafter attacked Smt. Kartaro with the axe and severely assaulted her. The witnesses raised an alarm but nobody came there. On the fateful morning, they were taking tea along with Nanak and Kartaro. All of a sudden the appellant came armed with a gun and an axe. He fired at Nanak Ram and thereafter attacked Smt. Kartaro with the axe and severely assaulted her. The witnesses raised an alarm but nobody came there. The appellant left with his gun and axe. Dayala Ram and Veero then went to Police Station Rawla and reported the matter the same day. (18). Giving the details of the incident Smt. Veero has deposed that the appellant fired eight or nine cartridges in a row and Nanak fell down due to the bullets hitting him. Thereafter, this witness and the other witnesses inside the house and Kartaro remained out side and the appellant assaulted her with the axe and fell her down. In examination she slated that appellant had loaded the gum with cartridges eight or nine times. When first shot was fired, Nanak was sitting and on being hit by the first shot, he fell down and the other shots were fired while, he was lying. She stated that they started for police station at about 11 a.m. and reached the police station after sunset. Police came to the village in night and took away Smt. Kartaro. The doctor visited the spot next day. Police arrested the appellant on the very night of the incident and took him away. Dayala Ram has given a different, version. He has stated that the appellant came with a gun and an axe. The appellant fired one gun shot at Nanak. He is categorically specific on this aspect. The appellant kept away his gun aside and then hacked Kartaro by hitting her with the axe. The appellant went away with his gun and axe and Kartaro was shifted to a cot underneath a nearby tree. According to Dhanno, the appellant came armed with a gun and an axe and fired 3-4 shots at Nanak. The witnesses rushed in the house. Kartaro remained outside and the appellant assaulted her with axe. Appellant assaulted Kartaro with axe for about half an hour and caused innumerable injuries to her. Pilloo Ram has deposed that the appellant came armed with a gun and an axe. He fired one shot at Nanak and 3-4 Pellets hit Nanak. He did not reload the gun. Kartaro remained outside and the appellant assaulted her with axe. Appellant assaulted Kartaro with axe for about half an hour and caused innumerable injuries to her. Pilloo Ram has deposed that the appellant came armed with a gun and an axe. He fired one shot at Nanak and 3-4 Pellets hit Nanak. He did not reload the gun. He assaulted Kartaro with axe, holding axe with one hand and holding the gun with other. A bare reading of the testimony of these witnesses goes to show that the evidence is discrepant on very material particulars viz how many shots were fired at Nanak Ram, how many times the gun was loaded and reloaded and how the appellant was holding the gun while assaulting Smt. Kartaro. They have given parrot like statements, so far as broad outlines of the story are concerned viz Veero was pregnant; the witness had come to see her a day ago; in the morning the witnesses and Nanak and Kartaro were sitting when the appellant came armed with a gun and first opened assault on Nanak by gun and then all the witnesses ran inside and the appellant axed Kartaro. However, when cross-examined on material particulars, the facade of the story has cracked and vitally discrepant versions have come, rendering the basic substratum of their version unreliable and unworthy of credence. (19). In the present case, the FIR purports to have been recorded on the day of alleged incident at 11 a.m. i.e. within 4 to 5 hours of the incident. this is what Premnath S.H.O. has also deposed. However, the star witness of the prosecution Smt. Veero P.W. 2 has categorically admitted in her cross-examination that "they started for the police station at about 11 a.m. noon. The police station Rawla was at a distance of 20-25 miles from their Dhani. They trudged this distance. They look 7 to8 hours in covering the distance to police station. The police came that night and took away Smt. Kartaro. The doctor came only the next day. The police station Rawla was at a distance of 20-25 miles from their Dhani. They trudged this distance. They look 7 to8 hours in covering the distance to police station. The police came that night and took away Smt. Kartaro. The doctor came only the next day. Her thumb impressions were taken on the report that had been recorded at the police station." This statement categorically demolishes the prosecution story given out by Premnath that the FIR had been recorded at 11 a.m. on the day of the incident and the doctor had reached with police the same noon and had carried out the post- mortem the same day at spot. Veero is highly interested in seeing that the murder of her husband and mother-in-law does not go unpunished; there is no reason why she should tell lie on such a crucial point. The trial court discarded her statement on this point on the ground that she lacked awareness about time and distance. In arriving at this conclusion, he drew support from the following facts (i) FIR gives the time of being recorded as 11 a.m. (ii) FIR gives the distance between the scene of occurrence and police station as 15 kilometers while Veero gives out this distance as 20-25 miles (iii) Dayal Ram, who is a literate witness and who admittedly accompanied Veero to police station stated that FIR was recorded at 11 a.m. (iv) The post-mortem report and injury report of Kartaro which bear the date of incident, bear FIR number. (20). We shall presently examine these facts in some details. However, before we do so, we may state that FIR in this case reached the office of the concerned Magistrate on 9.6.1991 and was actually placed before the Magistrate on 10.6.1991. If the FIR had been really recorded on 8.6.91, there is no earthly reason why it was not sent to the concerned Magistrate the same day. The prosecution has not cared to explain this delay in transmission of the FIR to the concerned Magistrate and this confirms the suspicion that FIR might not have been recorded at 11 a.m. on the date of incident but might have been written late that evening. (21). Recitals in FIR about the distance of Police Station Rawla from the scene of occurrence are not substantive evidence. Smt. .Veero has categorically stated this distance as 20-25 miles. (21). Recitals in FIR about the distance of Police Station Rawla from the scene of occurrence are not substantive evidence. Smt. .Veero has categorically stated this distance as 20-25 miles. Investigating Officer Premnath was cross-examined on this point and he has given highly evasive replies and he has stated that he did not recollect the distance of Police Station Rawla from the scene of occurrence. Thus, there is no evidence on record to show that the estimate of distance given by Smt. Veero is not correct. (22). We may slate that Dayala Ram PW 3 has not stated at what time the FIR had been recorded. He has also not stated the distance between the scene of occurrence and Police Station, Rawla. Thus, his statement could not be used to discredit the statement of Smt. Veero. (23). This is true that Dr. Balwant Singh has deposed that he went to the spot on 8.6.91 and conducted post-mortem examination of Nanak the same day at 1.30 p.m. He has also stated that he had examined the injuries of Smt. Kartaro on 8.6.91 at 4.30 p.m. This is also true that both the documents viz post mortem report and injury report bear FIR Number i.e. No. 122 dated 8.6.91. We also find that the statement of Dr. Balwant Singh has not been subjected to cross-examination on these points. But, nonetheless there is a vital discrepancy between the statement of Smt. Veero on one hand and that of Dr. Balwant Singh on the other. She has categorically stated that the Doctor had arrived on the spot next day. This would show that the doctor arrived at the spot on 9.6.91 and not on 8.6.91 as claimed by the doctor. Learned Public Prosecutor did not cross-examine Smt. Veero on this point at all. We are left guessing why Veero should depose that the doctor had arrived the next day, when the prosecution wants us to believe that the post-mortem examination of Nanak and injury report of Kartaro had been prepared the very day of the incident. (24). There is intrinsic material in the evidence of Dr. Balwant Singh, which makes his statement a bit unreliable. He admitted that rigor mortis to be present fully takes 8 to 10 Hrs. (24). There is intrinsic material in the evidence of Dr. Balwant Singh, which makes his statement a bit unreliable. He admitted that rigor mortis to be present fully takes 8 to 10 Hrs. If it is so and Nanak had died at 7 a.m. on 8.6.91, as claimed by the prosecution, rigor mortis could not have appeared fully on his dead body at 1.30 p.m., when the post-mortem examination was commenced by Dr. Balwant Singh. Dr. Balwant Singh has admitted that when he conducted autopsy on the dead body of Nanak, rigor mortis had appeared fully on his body. If the doctor could give a wrong statement on one point, then his testimony and the documents prepared by him would become suspect and unreliable. Dr. Balwant Singh admitted in his cross-examination that the stomach, small intestines and large intestine were completely full of gas at the time of post-mortem examination. He further admitted that he agreed with the statement of Modi contained at page 140 of his book on Medical Jurisprudence and Toxicology that gases started collecting within 12 to 18 hours but in the next breath he slated that this was not necessary. He added that if food had been taken, formation of gases may take 4 to 6 hrs. He could not cite any authority in support of this proposition. Now, the post-mortem report reveals that no food digested, semi-digested or undigested was found in stomach and the intestines. This shows that he had died without taking any meals. If so gases, to fill the stomach, and the intestines would take 8 to 10 hours. No gases could have been found present on 8.6.91 at 1.30 p.m., if deceased had really died at 7.a.m. on 8.6.91. This militates against the theory that post-mortem examination could have been conducted on 8.6.91 at 1.30 p.m. Dr. Balwant Singh could not be expected to admit that he had given incorrect date or timings in the post-mortem or injury reports. If Modis statement is correct, it would take 12 to 18 hours for the gases to collect. Nanak died at 7 a.m. on 8.6.91. Balwant Singh could not be expected to admit that he had given incorrect date or timings in the post-mortem or injury reports. If Modis statement is correct, it would take 12 to 18 hours for the gases to collect. Nanak died at 7 a.m. on 8.6.91. Hence post-mortem on him would have been conducted earliest at 7 p.m. on 8.6.91 and not at 1.30 p.m. This infirmity in medical evidence also confirms our suspicion based on the statement of Smt. Veero that doctor must have arrived the next day and the post-mortem examination must have been made only the next day and not on 8.6.91. The prosecution has not succeeded in allaying or dispelling this suspicion. Hence, we are not prepared to discard the statement of Smt. Veero, as one based on lack of awareness in respect of distance and timing. (25). In this very context, we may mention one very important fact. Premnath has admitted that he got the scene of occurrence photographed. The photographer has not been examined, nor photographers have been placed on record. The photographer would have been an independent person to throw light on what date and at what time photographs were taken. Non-examination of the photographer goes to show that had the photographer been examined, he would not have supported the prosecution case that police along with doctor and photographer had reached the scene of occurrence on 8.6.91. Thus, we are of the view that the statement of Veero that FIR was recorded late at night on 8.6.91 and the police arrived that day late in night and doctor arrived next day, could not be discarded. This would fit in with the delayed transmission of FIR to the concerned Magistrate, the delay, remaining altogether unexplained. (26). In the present case, learned counsel for the appellant contended that entire investigation has been tainted and is unreliable. In this context, he took us through the statement of Smt. Veero wherein she stated that the police arrived on the scene of occurrence on the night of incident and that very night Sher Singh was arrested. It is urged that there was no reason for Veero to make a false statement on this point. We find that there is much substance in the contention. There is no reason why Veero would make a false statement on this aspect of the case, which is seemingly of no consequence. It is urged that there was no reason for Veero to make a false statement on this point. We find that there is much substance in the contention. There is no reason why Veero would make a false statement on this aspect of the case, which is seemingly of no consequence. She is positive that Sher Singh had been apprehended that very night. Premnath, Invesgitating Officer has tried to create an impression that actually Sher Singh was apprehended on 11.6.91 vide Ex.P. 22. This arrest memo purports to have been prepared in presence of Banta Ram and Gandhi Ram (both very close relations of Smt. Veero) but none of them has been examined in support of the prosecution case that Sher Singh was arrested on 11.6.91. On cross-examination, S.H.O. Premnath was unable to state at which place, he had arrested the appellant. The arrest memo is conspicuously silent on this aspect. Hence, we are of the view that appellant must have been apprehended on the night of 8.6.91 and not oh 11.6.91 as suggested by Premnath. (27). In murder cases, motive usually furnishes a clue to the identity of murderer, though it is not obligatory for the prosecution to establish motive in each and every case. Absence of motive may be a pointer to the innocence of the accused. In the present case, no motive has been established whatsoever. It is indeed surprising why the appellant should have murdered his wife and only son. It is alleged that three years prior to the incident, appellant had separated Nanak Ram and had given him 10 bighas of land for cultivation. Relations between Kartaro and appellant were not very happy and she was also staying with Nanak Ram. Veero admitted that during the three years (after separation) no quarrel whatever took place among them. What all of a sudden provoked the appellant to commit these ghastly crimes, is not known. We find that once the appellant had separated his son and had given separate land to him and appellants wife had also started living with the son, no apparent reason survived why appellant should have murdered his wife and son. Thus, we find that no motive has been established in the present case. (28). Now, we may examine if the testimony of alleged eye- witnesses inspires confidence. Thus, we find that no motive has been established in the present case. (28). Now, we may examine if the testimony of alleged eye- witnesses inspires confidence. Smt. Veero has admitted that village 7 KND, to which Dayala Ram, Pilloo Ram and Dhanno belonged was at a distance of 34-55 miles from the dhani of the deceased. Apparently, the presence of Dayala Ram, Pilloo Ram and Dhanno at the scene of occurrence is only by chance. They have deposed that Veero was pregnant and they had come just to visit her. As against this, the case of the appellant is that Veero was also away at her parents place and it was the police which procured their presence. Suggestions were given to Veero, Dayala Ram, Dhanno and Pilloo Ram to this effect and all of them have denied these suggestions. They could hardly be expected to own this position, when they were claiming to be eye-witnesses. Sending of police jeep to the village of these people, as admitted by Veero, fits in with the explanation of the appellant that it was to summon all of them that the jeep was sent. There is no other ostensible explanation by the prosecution for sending the police jeep to the village of these people. (29). In this case, the Investigating Officer has recovered one double barrel gun at the instance of the appellant. P.W. 7 Premnath has admitted that this is a muzzle loading gun and it has to be loaded by filing up gun powder and pellets in the barrel and a cartridges cannot be loaded in this gun. Such a gun to be fired is to be loaded with gun powder and pellets again and again. It is to be remembered that firing of such a gun would not leave any empties at the spot. Indeed no empties were found or recovered from the spot. Smt. Veero has come out with the story that the appellant fired the gun at Nanak a number of times and loaded and reloaded the same with cartridges a number of times. She has further stated that the appellant collected the empties lying on the spot and took them away. Now, this was a very significant and important fact, which Smt. Veero could not have missed while getting the FIR lodged. She has further stated that the appellant collected the empties lying on the spot and took them away. Now, this was a very significant and important fact, which Smt. Veero could not have missed while getting the FIR lodged. FIR Ex.D. 1 is not a very brief or cryptic document but gives all essential details of the incident. It does not mention that cartridges were loaded and reloaded. It does not mention that any empties were lying on the spot. It does not mention that the appellant collected the empties and took them away. This shows that Smt. Veero has improved her version on a material aspect of the case, ostensibly with a view to bolster up her version given during trial, which otherwise stood discredited by non-recovery of any empties from the spot. It is significant that Dayala Ram, who claims to be an eye-witness of the occur rence, does not corroborate Smt. Veero on this point at all. Rather he contradicts Veero and positively states in cross- examination that appellant had fired the gun only once. P.W. 4 Pilloo Ram has also stated that only one gun shot had been fired. He states of an empty (not empties) being-taken away from the spot. He categorically states that the gun had not been loaded with cartridge a second time. Smt. Dhanno has, of course, spoken of gun being fired 2-4 times and has further stated that the appellant had taken away the empties. We find that on a very material point, the alleged four eye-witnesses have not supported each other viz if the gun was fired once or more than once. The evidence is highly discrepant and is unworthy of credence particularly when we take into consideration the fact that Dayala, Dhanno and Pilloo Ram were all chance witnesses. (30). There is one very important aspect of the prosecution case. The manner in which alleged eye-witnesses have spoken about the occurrence, both Nanak and Kartaro must have bled profusely and the profuse bleeding must have left tell-tale marks at the spot. Ex.P. 5 site inspection memo, though states that dead body of Nanak Ram and injured Kartaro were seen lying at the spot, does not mention that any blood was found at the spot. Ex.P. 5 site inspection memo, though states that dead body of Nanak Ram and injured Kartaro were seen lying at the spot, does not mention that any blood was found at the spot. Investigating Officer Premnath claims to have recovered blood stained soil from the spot vide Ex.P. 8 in presence of Dayal Ram and Banta Ram, but Banta Ram has not been examined. Dayal Ram does not speak of collection of blood stained soil. It is interesting to note that no independent witness of the locality was associated with this alleged recovery of blood stained soil even though inquest report Ex.P. 7 mentions the presence of independent witnesses, Pritam Singh, Chimna Ram and Hardatta Singh, all belonging to PM 1, the village where the incident took place. On top of all this, no report from State Forensic Science Laboratory is for the coming to show that the sample of soil collected from spot and said to be stained with blood, was really stained with human blood. This is compatible with the possibility that Nanak must have been shot at some other place and like wise kartaro must have been assaulted at some other place and the two bodies might have been lifted after bleeding had stopped and had been placed near their dhani to create an impression that it was at the dhani that they had been assaulted. (31). It is natural to expect that if the appellant had killed Nanak and assaulted Kartaro in presence of Veero, Dayala Ram, Pilloo Ram and Dhanno and had left the spot, Veero, Dayala Ram, Pilloo Ram and Dhanno would go near Nanak and Kartaro to find out if the two assaulted persons were alive and needed to be attended to P.W. 2 Dayala Ram states that he along with Veero and Pilloo Ram lifted Kartaro and placed her on a cot. He has admitted that wearing apparel of all the three witnesses got stained with blood in the process. But he has admitted that these clothes were not handed over to police as they had been washed immediately and it was thereafter that they (Veero and this witness) went to Police Station. This is strange conduct. Moreover, Veero does not corroborate this version. Even Smt. Dhanno does not corroborate this story. But he has admitted that these clothes were not handed over to police as they had been washed immediately and it was thereafter that they (Veero and this witness) went to Police Station. This is strange conduct. Moreover, Veero does not corroborate this version. Even Smt. Dhanno does not corroborate this story. P.W.4 Pilloo Ram has given a different version and has categorically stated that Kartaro was not lifted after the assault and was allowed to remain lying at the spot, where she had fallen. He has given the version that Veero and this witness went to Nanak. Veero fell upon Nanak and her clothes were stained with blood. The clothes of this witness were also stained with blood. He had admitted that these blood stained clothes were not handed over to police. He does not state that the clothes had been washed of. Non-handing over of alleged blood stained clothes to police further weakens the testimony of alleged eye-witnesses, whose evidence is discrepant on material aspects. (32). All the four alleged eye-witnesses have come out with the story that appellant was carrying both, a gun and an axe. This is quite unusual. He could have murdered Nanak Ram and Kartaro by gun alone. The manner in which he is said to have carried the axe while firing the gun is also unusual. According to Smt. Veero, appellant was firing the gun by left hand and was holding the axe in the right hand. According to Dayala Ram, appellant was holding the gun in right hand and was carrying the axe in left hand. The other two witnesses are silent on this aspect of the case. (33). Now, the medical evidence shows that the gun pellets has passed through the body of deceased Nanak Ram leaving as many as five exit wounds. In the normal course, such blood stained pellets should have been found in the vicinity of the dead body of Nanak Ram. Admittedly, no pellets were recovered from the vicinity of the dead body; rather no pellets were at all recovered. This is also indicative of the fact that deceased might not have been fired at the spot, where alleged eye-witnesses claim to have seen the murder being committed. (34). There is one more interesting feature of the case. Admittedly, no pellets were recovered from the vicinity of the dead body; rather no pellets were at all recovered. This is also indicative of the fact that deceased might not have been fired at the spot, where alleged eye-witnesses claim to have seen the murder being committed. (34). There is one more interesting feature of the case. S.H.O. Premnath wants us to believe that the appellant was roaming in blood stained clothes till 11.6.91, when he claims to have arrested the appellant with blood stained clothes on. He claims to have recovered these clothes vide Ex.P. 23. It does not appear that these clothes ever reached the State Forensic Science Laboratory and human blood was detected on them. No report from Stale Forensic Science Laboratory has been produced. (35). Moreover, it is strange that the appellant would keep on roaming with blood stained clothes on till 11.6.91. Even the story that appellant was arrested on 11.6.91 is open to doubt. Smt. Veero has admitted in cross-examination that police came to the spot on the night of the incident and the appellant had been apprehended that very night. To the same effect is the statement of P.W. 4 Pilloo Ram. (36). The S.H.O. wants us to believe that he recovered one gun and one axe at the instance of the appellant on 13.6.91. P.W. 4 Pilloo Ram contradicts this version by specifically stating that the police had taken away the gun and the axe of the appellant on the very day of incident when the appellant had been apprehended by police. No independent witnesses of the locality appear to have been associated with these recoveries and the only witnesses of these recoveries are P.W. 3 Dayalal Ram and his father Gandhi Ram. (37). From the discussion made above, we are of the firm view that Shri Premnath, Investigating Officer acted in a highly unfair manner and he tried to make it a one sided affair, highly tilted in favour of the prosecution. Learned trial Judge failed miserably in truly understanding the whole manoeuvre of the Investigating Officer, who left no opportunity of creating circumstances, which may show the appellant in adverse light. Learned trial Judge failed miserably in truly understanding the whole manoeuvre of the Investigating Officer, who left no opportunity of creating circumstances, which may show the appellant in adverse light. Arrest of the appellant on the night of the incident and not correctly showing the same, recovering the gun and the axe the same night and giving it colour of recoveries at the instance of the appellant at a later date and recovering allegedly blood stained clothes of appellant, when they have not been established to be really blood stained arc some of such instances. Learned trial Judge was wholly wrong in saying that investigation was tilled in favour of the appellant. (38). Summing up the discussion, we find that it has not been established beyond reasonable doubt that Nanak Ram and Kartaro were murdered in the vicinity of the Dhni of Nanak Ram in the manner alleged by the prosecution. There is a good deal of reasonable doubt if the appellant committed the two murders in the manner suggested by the prosecution. (39). In view of our findings, it is no more necessary to discuss the defence of the appellant. However, since the learned Judge of the trial court thought (rather erroneously) that due to explanation furnished in statement under section 313 Cr.P.C., the burden of proving his innocence had shifted to the accused, we would like to deal with the matter at some length. The explanation of the appellant is that on the night preceding the incident, he had been away. His son Nanak and wife Kartaro were in the field. Smt. Veera had already gone to her parents place as she was expecting. He reached the field in the morning and saw his son lying dead and wife in an injured condition. He went to Police Station Rawla and informed the police, upon which the Investigation Officer and the doctor came. The Investigating Officer sent a jeep to summon Veero and her people on parents side. They foisted this false case to grab his land. Now, there is no prosecution evidence on record to show that appellant had not been away, as claimed by him. When Veero and her mother and brothers were claiming to be eye-witnesses, they or the Investigating Officers could not be expected to own that they had been summoned by the Investigating Officer by sending a jeep. Now, there is no prosecution evidence on record to show that appellant had not been away, as claimed by him. When Veero and her mother and brothers were claiming to be eye-witnesses, they or the Investigating Officers could not be expected to own that they had been summoned by the Investigating Officer by sending a jeep. But, it is in prosecution evidence itself that a police jeep had been in fact sent to place of Veeros parents. There is no explanation from the prosecution side as to why at all police jeep had been sent to the village of Veeros parents. It could not be expected from Investigating Officer Premnath that he would own that appellant had come to him and had informed him of the fact that his son was lying dead and wife was lying in injured condition. But Veeros admission that FIR had been recorded late in the evening and not at 11 a.m. as claimed by Investigating Officer creates doubt about the veracity of the prosecution story. Some time must have been taken in procuring the presence of Veero and her people and this must have delayed the recording of the FIR. The appellant had no immediate cause or motive for murdering his son and wife Kartaro and Nanak had been living separate from him and peacefully for three years and during these three years, there was not a single quarrel or dispute between the appellant and his son and wife, as admitted by Smt. Veero. There is nothing in the explanation of the appellant, which could have thrown the burden of proving his innocence upon the appellant. (40). In the present case, this possibility has not been ruled out that Kartaro and Nanak might have been murdered unseen at some other place by one or more assailants and the assailants might have left the dead body of Nanak and injured Kartaro after they had stopped bleeding at the Dhani. The probability that Veero and her mother and brothers may not have been present at the time or murderous assaults and might have been summoned after the appellant had informed the police, has also not been ruled out altogether. The greed of land in the district of Sri Ganganagar is well known and false implication of innocent persons in that district has not been uncommon. The greed of land in the district of Sri Ganganagar is well known and false implication of innocent persons in that district has not been uncommon. People of Veeros parents side might have found it a good opportunity to deprive appellant of his own land, is also not ruled out. It is an admitted position that the land of appellant is now in possession of Veero and people on her parents side. Thus suspicion has not been allayed or dispelled in the present case. (41). We, therefore, find it difficult to maintain the conviction of the appellant under section 302, I.P.C. for the twin murders. The appeal of the appellant Sher Singh is accepted and the conviction and the sentence passed by the learned trial Judge for the said charge is set aside and he is acquitted of charge under section 302, I.P.C. Reference for confirmation of the death penalty on the appellant is rejected. The appellant shall be set at liberty forthwith, if not required in any other case..