JUDGMENT 1. The judgment will dispose of all the three above numbered criminal appeals as they arise out of the same judgment dated 26th September 1991 of the learned Additional Sessions Judge, Beawar, District Ajmer. Under the aforesaid judgment, the learned Addl. Sessions Judge convicted the accused-appellant Papaliya @ Om Prakash. Rama Ram Niwas and Charnpa under section 302 Indian Penal Code and each of the accused appellant has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000/- and in default of payment of fine to further suffer six months rigorous imprisonment Along with accused appellants three other accused persons namely Prakash Chopra, Banti @ Kamal Kishore and Prem Chand were also tried under section 147, 148 and 302/149, Indian Penal Code, but they have been acquitted of the aforesaid charges. 2. The case relates to the death of one Mahendra Kumar, and the case of the prosecution is that on 28th April 1990 at 10:45 p.m. Papaliya @ Om Prakash accused appellant along with Champa came on a motor cycle and asked the deceased Mahendra Kumar to accompany them to 'Chopad' When Mahencra Kumar deceased refused to accompany them, both of them returned. Mahendra Kumar then told Budhhi Sagar. his brother PW 8 that he should go and call Sattu bhai. Budhdhi Sagar went to call Sattu, but he was not available on his house. When he returned he saw that Papaliya accused-appellant and others were taking his brother to 'Chopad'. He also went and saw that they were grappling with his brother Mahendra Kumar and when he (Budhdhi Sagar) made an attempt to intervene, he was pushed aside. Mahendra Kumar then asked him to go and call Sattu. He returned with Sattu in about 5-7 minute; and saw that the accused appellant Papaliya was giving blows to his brother with a knife. His brother was lying on the ground. The accused appellant Papaliya and his companions made their escape. Mahendra Kumar then asked him to go and call Sattu. He returned with Sattu in about 5-7 minute; and saw that the accused appellant Papaliya was giving blows to his brother with a knife. His brother was lying on the ground. The accused appellant Papaliya and his companions made their escape. A report of the incident was lodged by Budhdhi Sagar PW 8 in Police Station Beawar city where a case was registered at 11.45 p.m. post-mortem was conducted on the dead-body of Mahendra Kumar and the Doctor found that Mahendra Kumar had as many as five incised wounds and there were also contusions and abrasions The deceased died due to Synode as a result of shock on account of extensive and extreme bleeding due to stab wound caused over the abdomen cutting the spleen. The accused-persons were arrested and after investigation a charge-sheet was filed against them. After the close of the prosecution evidence, each of the accused person was examined under section 313 Criminal Procedure Code in order to explain the circumstances appearing against then and the accused appellants in their statements under section 313 Criminal Procedure Code stood on a bare plea of denial. The accused persons did not examine any witness in defence. The learned Sessions Judge as said earlier convicted the accused appellants namely Papaliya @ Om Prakash, Rama and Champa and acquitted the accused persons Prakash Chopra, Banti @ Kamal Kishore and Prem Chand as aforesaid. 3. Though the prosecution examined many eye witnesses including PW 17 Babulal, but the learned Trial court has disbelieved even Babulal and so far as other witnesses are concerned, they did not support the case of the prosecution and were declared hostile. At any rate, the case of the prosecution rested on the testimony of PW 8 Buddhi Sagar and PW 17 Babulal Even Satya Narain @ Sattu PW 3 on whom the deceased Mahendra Kumar had implicit faith and who is' said to be present at the time of occurrence, did not support the case of the prosecution. So far as PW 17 Babulal is concerned, the learned trill court (Additional Sessions Judge, Beawar) has held that he is not a credible witness and he has dealt with this witness in para 12 of his judgment. The learned trial court has said that he (Babulal PW 17) had not actually witnessed the occurrence. So far as PW 17 Babulal is concerned, the learned trill court (Additional Sessions Judge, Beawar) has held that he is not a credible witness and he has dealt with this witness in para 12 of his judgment. The learned trial court has said that he (Babulal PW 17) had not actually witnessed the occurrence. The reasons to hold so which have been assigned by the learned trial court are that his conduct was abnormal in as much as lie did not make attempt to save his friend Mahendra Kumar. He did not even inform the police about the incident. goes to the hospital, takes the dead-body of the deceased, but even then did not disclose about the incident to anybody and he was only examined after 2-3 days of the incident. There are no reasons to take a contrary view than taken by the learned Addl. Sessions Judge. Therefore, once Babulal PW 17 is held not to be the eye witness. the only evidence which remains on record is of Budhdhi Sagar @ Naina PW 8. 4. Admittedly, Budhdhi Sagar Naina PW 8 is the ;real brother of deceased. He had lodged FIR. Ex.P.15 which is in writing, A look at the report Ex.P.15 will show that in the report Budhdhi Sagar has said teat the accused appellant Papaliya @ Om Prakash along with Champa Mali had asked his brother Mahendra Kumar to accompany them to 'Chopad'. but his brother refused. In his statement in the court as PW 8, Budhdhi Sagar stated that both the accused persons had come to his house, but his brother refused to accompany them. If the accused-persons had left the house of the deceased, what was the occasion for Mahendra Kumar to ask Budhdhi Sagar to go and call Sattu. Budhdhi Sagar further states that he went on a motor-cycle to call Sattu, but be could not find him and returned to the house and then he saw that at his house, the accused-appellants Papaliya @ Om Prakash, Prem Chand, Rama and Champa were dragging his brother in the lane towards Chapar. He also followed them. Budhdhi Sagar further states that he went on a motor-cycle to call Sattu, but be could not find him and returned to the house and then he saw that at his house, the accused-appellants Papaliya @ Om Prakash, Prem Chand, Rama and Champa were dragging his brother in the lane towards Chapar. He also followed them. A look at the FIR so far as this story of the prosecution is concerned, will show that when he returned to the house be saw that not only the four accused persons but two more were named by him as Banti Mali and Prakash Chopra were grappling with bis brother. In the FIR, he stated that he wanted to intervene then Prem Chand pushed him aside and Mahendra Kumar again asked him to go and call Sattu, as the accused-persons were beating him. He stated that he returned with Sattu Teli and then he saw that the accused appellants along with three others were beating his brother Mahendra Kumar. It will this be seen that whereas in the FIR with which he was confronted in the court, he stated that the accused-appellants were giving blows to his brother Mahendra Kumar with knife, in his statement in the court he stated that accused appellants were giving blows with Katar. It will, therefore, be clear that he modulated his statement as it suits him and when he made bis statements in the court he had not named two more accused persons namely Bunti and Prakash. In the court he states that there were only four accused persons and he clearly states that two other accused persons namely Bunti and Prakash Chopra were not there. Not only that he does not name two other accused persons named above, but also made a categorical statement that except four accused persons who were named by him, he did not see any other person giving blows to his brother, and when he was confronted with his police statement wherein he has named Bunti @ Kamal Kishore and Prakash, he stated that he had not stated so. He had rot stated in his police report that the accused appellant Papaliya was armed with Katar and gave blows with it. He had rot stated in his police report that the accused appellant Papaliya was armed with Katar and gave blows with it. It will, therefore, be clear that be has changed the weapon so far as accused-appellant is concerned and it has become doubtful whether the accused appellant was armed with knife or Katar As per his statement, he had been asked by his brother to go and call Sattu and if the intention of the accused persons was to cause the death of Maherdra Kumar, they would not have waited for the return of PW 8 Budhdhi Sagar so that he could have witnessed the occurrence. It can. therefore, be said that Budhdhi Sagar introduced two more persons in his police statement, but for reasons best known to him did not want to implicate them in the court and only confined his statement to three accused appellants and one more Prem Chand. Budhdhi Sagar, therefore, as said above is the real brother of deceased, is the solitary witness and for the reasons already stated, he cannot be said to be witness of sterling worth. There is no other evidence to corroborate his statement. It will, therefore, be not safe to rely on his statement and convict the three accused appellants. 5. Consequently, we hereby allow these above numbered three appeals, set aside the judgment of the learned trial court convicting and sentencing the three accused appellants under section 302 Indian Penal Code. The sentence awarded to each of the accused appellant is set aside. Papaliya @ Om Prakash is in jail, he shall be released forthwith if not wanted in any other case. The other accused appellants are on bail. Their bail bonds stand discharged and they need not surrender the bail bonds.Appeal allowed. *******