Judgment J. R. CHOPRA, J ( 1 ) THIS appeal is directed against the Judgment of the learned Sessions Judge Banwara dated 21-8-1989, whereby learned Sessions judge has held that accused-appellants Khumanasing Nawalsingh, Bahadursing, Mansingh, Ramsingh, Mansingh S/o Budha Tejpalsingh, Kantilal, Raju, Abhaysingh and Ramdeosingh guilty of the offences under Sections 148 and 302/149 IPC and sentenced each of them to one years rigorous imprisonment for the offence, under S. 148 IPC and they have been further sentenced to life imprisonment together with a fine of Rs. 500. 00 each and in default of payment of this amount of fine, to undergo one months rigorous imprisonment for the offence under Section 302/149 IPC. Both these sentences were ordered to run concurrently. ( 2 ) THE facts necessary to be noticed for the disposal of this appeal briefly stated are : that this occurrence took place somewhere in between the gate of Banswara Syntex Mills and Khandu Gate on 24-3-1985 at about 7. 10 or 7. 15 a. m. The person who was seriously. injured and ultimately died was Shyamsingh, who was then President of the INTUC Union of the employees of the Banswara Syntex Mills. It is alleged that when Shyamsingh came out of the gate of the Banswara Syntex Mills and was proceeding towards Khandugate, all these 12 Accused-appellants out of whom, Natwarsingh, Bahadursingh and Ramdeosingh were armed with swords; Ramshigh Labana was armed with a Dhariya and Raju was armed with a Pharsi and other accused-persons were armed with lathies, came out from behind the Tea and Betel Cabins situated in between the gate of the Banswara Syntex Mills and Khandugate and conjointly availed deceased Shyamsingh. It is alleged that initially, accused appellant Natwarsingh struck, a blow on his face with his sword and thereafter, the other blow was given by accused Bahadursingh on his head with his sword and later, all the accused-persons inflicted blows to him from the weapons with which they were armed. Shyamsingh fell down. The accused-persons conjointly gave a lalkara that enemy should be killed otherwise he will take a revenge. It is alleged that accused Bahadursingh brought a big piece of stone and threw that piece of stone on his face and told that "i have taken my revenge". When PW5 Shivsingh, PW 7 Karansingh, PW 10 Gopal Singh and PW 11 Shyamsingh tried to intervene, the accused-appellants threw stone on them. It is alleged that accused Bahadursingh brought a big piece of stone and threw that piece of stone on his face and told that "i have taken my revenge". When PW5 Shivsingh, PW 7 Karansingh, PW 10 Gopal Singh and PW 11 Shyamsingh tried to intervene, the accused-appellants threw stone on them. However, when the second shift of the Banswara Syntex Mills was over and the labourers started coming out of the factory, the accused-persons ran away from the place of the occurrence. ( 3 ) IT is alleged that initially when Shyamsingh saw these accused-appellants armed with deadly weapons, he tried to run away towards Police lines but he was availed near the Tea Cabin of Bhanwarsingh, which is situated on the side of the police line whereas Kailash Pan Bhandar is situated towards the side of village Thikariya and in the north of the open space of Khandu Colony. ( 4 ) THESE accused-person; inflicted a number of injuries to Shyamsingh. It is alleged that this occurrence was seen by PW 5 Shivsingh, the first informant, PW 7 Karansingh, labour of the Banswara Syntex Mills, PW 10 Gopalsingh, a labourer of the Banswara Fabric and PW 11 Shyamsingh, another labourer of the Banswara Fabric. It is further alleged that after the accused-appellant ran away from the place of the occurrence, these four eye witnesses reached near the body of Shyamsingh. At that time, one empty Dumper was coming from the side of village Thikariya. They prevailed upon the driver of the Dumper to stop it. They put the body of Shyamsingh into it and alongwith him, all these four witnesses leached the M. G. Hospital Banswara where Shaymsingh was got admitted as an indoor patient. Thereafter, PW 5 Shivsingh was sent to report the matter to the police, where he lodged the written report Ex. P 14. On the Basis of that report, a formal FIR Ex. P 15 was drawn. ( 5 ) IT is alleged that the condition of the patient was serious and, therefore, no time was wasted in examining his injuries and, therefore, he was immediately shifted to the Operation Theatre of the Hospital where incision was given on his throat to drain out the blood, which had collected inside his body but before anything could be done, he succumbed to his injuries at about 9. 45 a. m. Thereafter, his dead-body was shifted to Mortuary of the Hospital where the Inquest Memo Ex. P 1 was prepared. Thereafter, the site was inspected and site plan Ex. P 3 and site inspection memo Ex. P 2 were prepared. From the site, the blood stained soil and controlled soil and pieces of stone, sword and lathi were recovered. The recovered stone was blood stained and it was weighing about 8 Kg. The postmortem examination of the dead body of Shyamsingh was conducted and its report has been marked as Ex. P 23. The clothes of the deceased were taken into possession. The accused-persons were arrested and on their information and at their instance, the weapons of offences were recovered. After postmortem examination, the dead body of deceased Shyamsingh was handed over to his relation Mohansingh vide Ex. P 26. ( 6 ) IT is alleged that the Chowkidar, who was on guard-duty on the gate of Banswara Syntex Mills made a report to the Factory Manager, which too has been marked as Ex. P. 26. It appears that Ex. P. 26, has been marked twice. In that report, it has been stated that Shiv Singh and Karansingh left the Factory at about 7. 05 a. m. on 24-3-1985 without his permission on the pretext that they are coming back after taking tea with Shymsingh within 5 minutes but they did not return back. ( 7 ) AFTER usual investigation and after obtaining the chemical and serological reports of the weapons of the offences and blood stained articles etc. , a case against all these 12 accused-appellants was challaned in the court of the learned Chief Judicial Magistrate, Banswara from where it was committed for trial to the court of the learned Sessions Judge, Banswara. ( 8 ) THE learned Sessions Judge charged these accused-appellant for the offences under Ss. 148, 302 and 302/149 IPC. The accused-appellants did not plead guilty to the charges framed against them and claimed trial whereupon, the prosecution examined as many as 19 witnesses including PW 17 Dr. S. L. Jain, PW 19, S. H. O. Khushalsingh and the four alleged eye witnesses of the occurrence viz. , PW 5 Shivsingh. PW 7 Karansingh. P. W. 10 Gopalsingh and PW 11 Shyamsingh. S. L. Jain, PW 19, S. H. O. Khushalsingh and the four alleged eye witnesses of the occurrence viz. , PW 5 Shivsingh. PW 7 Karansingh. P. W. 10 Gopalsingh and PW 11 Shyamsingh. In addition to that, P W 8 Chhogalal Chowkidar, who was on guard duty on the gate of the Banswara Syntex Mills on that day has also been examined. The rest of the witnesses are Motbirs either of the site inspection memo or the arrest of the accused persons or the recoveries made from them. The statement of the accused-persons were recorded under S. 313 Cr. P. C. They did not examine anybody in their defence. After hearing both the parties at lenght, the learned Sessions Judge has convicted and sentenced the accused-appellants as aforesaid and hence this appeal. ( 9 ) WE have heard M/s. M. M. Singhvi and Sandeep Mehta, the learned counsel appearing for the accused-appellants and Mr. D. R. Bohra, the learned Public Prosecutor for the State and have carefully gone through the record of the case. ( 10 ) IT was contended by Mr. M. M. Singhvi that the FIR in this case is a post investigation document. The eye witnesses are totally unrealiable. He does not challenge that the death of Shyamsingh was homicidal and it had been the result of the injuries received by him, but according to him, the alleged eye witnesses who have been examined by the prosecution have not seen the occurrence. Their statements are totally unworthy of reliance. Their conduct is most unnatural and against human probabilities. The relations between the accused-person and the deceased were strained and therefore, it is case of false implication of the rivals of the Employees Union. The FIR has reached the Magistrate late i. e on 25-3-1985 (next day ). According to Mr. Singhvi, the motive that has been spelled out is not sufficient to commit the murder of Shyamsingh. He has submitted that even if there was any motive, it was against accused-appellant Bahadursingh alone and not against other accused-persons. He has submitted that in this case, the investigation is unfair and it does not show from where the alleged eye witnesses have seen the occurrence. He has submitted that even if there was any motive, it was against accused-appellant Bahadursingh alone and not against other accused-persons. He has submitted that in this case, the investigation is unfair and it does not show from where the alleged eye witnesses have seen the occurrence. He has further submitted that the prosecution story that accused Natwarsingh was also amongst the assembly which attacked deceased Shaymsingh cannot be believed because he was working in the Banswara Syntex Mills and came out of the Mill alongwith PW 5 Shivsingh and PW 7 Karansingh and, therefore, he could not have formed part of that unlawful assembly which was formed with a common object to kill Shyamsingh. It was contended that the independent witnesses were available but no attempt whatsoever has been made to examine and interrogate them and they have also not been produced at the trial. The learned Sessions Judge has relied upon inadmissible evidence. It is a case of over-implication on account of enmity. It was, therefore, contended by Mr. Singhvi that the accused-persons deserve acquittal. ( 11 ) THESE submissions made by Mr. Singhvi were seriously opposed by Mr. D. R. Bohra, the learned Public Prosecutor appearing for the State. Mr. Bohra has submitted that the case has been proved by the prosecution and that all the four eye witnesses of the occurrence have categorically stated that these very 12 accused-persons who were armed with deadly weapons conjointly attacked Shyamsingh and caused injuries to him and on account of those injuries, he died. Mr. Bohra has submitted that when the occurrence has been seen by these four eye witnesses and the injuries which have been received in that assault by deceased Shyamsingh have been proved by the testimony of PW 17 Dr. S. I. Jain then there is no escape from the fact that the accused persons have been rightly held guilty of the offences under Ss. 148 and 302/149 IPC by the learned Sessions Judge. Thus, the Judgment of the learned Sessions Judge deserves to be sustained. ( 12 ) WE have given our mast earnest consideration to the rival submissions made at the bar and have critically gone through the evidence recorded in the case as also the findings recorded by the learned Sessions Judge. ( 13 ) INITIALLY, we deal with the contention of Mr. Singhvi that the FIR Ex. ( 12 ) WE have given our mast earnest consideration to the rival submissions made at the bar and have critically gone through the evidence recorded in the case as also the findings recorded by the learned Sessions Judge. ( 13 ) INITIALLY, we deal with the contention of Mr. Singhvi that the FIR Ex. P 14 is a post investigation document. The contention of Mr. Singhvi is that the occurrence took place at about 7. 15 a. m. in the morning of 24-3-1985. The accused-persons have come from benind the tea and betel cabins and availed deceased Shyamsingh at Place-A shown in the site plan Ex. P3. Initially, he tried to run away but he was not allowed to run and was availed at Place -A shown in site plant Ex. P 3. It is alleged that these four eye witnesses have tried in intervene but they were not allowed to do so. It was only at about 7. 30 a. m. when the shift was over and the labourers started coming out of the Factory that the accused-persons ran away. Thus, it is clear that upto 7. 30 a. m. , these witnesses where not alllowed to go near the body of Shyamsingh. After the accused-persons ran away the place of the occurrence, it is alleged that these witnesses saw a dumper coming from the side of village Thikariya. They must have persuaded the Driver of the Dumper to stop it there and then they must have lifted the body of Shyamsingh and must have put it in the Dumper and thereafter, they have gone to Mahatma Gandhi Hospital, Banswara, which is situated at a distance of 3 kilometers from the place of the occurrence and then they must have taken the body of Shyamsingh into the Hospital and got him admitted in the Hospital. Mr. Singhvi has submitted that all the four eye witnesses have categorically stated that after Shyamsingh was admitted in the Hospital, PW 5 Shiv Singh was sent for lodging the FIR. Half an hour or more than that period must have been consumed in this process. ( 14 ) BE that as it may, as per PW 5 Shiv Singh, he went to the Police Station and got the report (Ex. Half an hour or more than that period must have been consumed in this process. ( 14 ) BE that as it may, as per PW 5 Shiv Singh, he went to the Police Station and got the report (Ex. P. 14) scribed from a Police Constable and then signed it at place A to B and thereafter, submitted it to the Sub- Inspector. He does not say that he presented it to PW 19 SHO Circle Inspector Khushalsingh. His contention is that he does not know whether Khushalsingh was there or not and, therefore, he submitted that report to one Sub-Inspector. That Sub-Inspector has not been examined at the trial PW 19 Khushalsingh has submitted that this written report Ex. P 14 was submitted before him by PW 5 Shivsingh and that fact is categorically denied by PW 5 Shivsingh. PW 19 Khushalsingh has stated that this report Ex. P 14 was not got scribed in the police station through any constable whereas P W 5 Shivsingh has stated that he went to the Police Station to lodge a verbal report of this occurrence but that oral report was not lodged and therefore, he got it scribed from the constable. Whatever he spoke was written by that Constable and thereafter, he singned it and presented it to the Sub-Inspector P W 19. Khushalsingh has stated that this report Ex. P 14 was submitted before him at about 8. 00 a. m. A report which is being written in two pages on dictation certainly takes about 15 to 20 minutes and therefore, this report could not have been produced before PW 19 Khushalsingh at 8. 00 a. m. PW 5 Shivsingh has categorically stated that signatures C to D were obtained on Ex. P. 14 from him after an hour of the lodging of the report and his signatures on Ex. P 15 were obtained in the afternoon. Whereas, PW 19 Khushalsingh has stated that as soon as the report Ex. P 14 was presented, the Formal FIR Ex. P 15 was scribed by a Constable and thereafter, it was got signed and he reached the Hospital at about 8. 45 a.m. This was not possible because scribing of formal FIR Ex P 15 might have taken its own time. Moreover, PW5 Shivsingh has categorically stated that his signatures on the formal FIR Ex. P 15 was scribed by a Constable and thereafter, it was got signed and he reached the Hospital at about 8. 45 a.m. This was not possible because scribing of formal FIR Ex P 15 might have taken its own time. Moreover, PW5 Shivsingh has categorically stated that his signatures on the formal FIR Ex. P. 15 were obtained in the afternoon and his signatures on the report Ex. P 14 were obtained after an hour of the lodging of the report. Thus, it appears that initially, information was given to the police that a murderous assault has been made on Shyamsingh and the Police came into action immediately and thereafter, these witnesses were fished out to support the case of the prosecution and then this report was got scribed. The Police station, Kotwali is situated in Banswara city itself and therefore, there is no reason why this report was submitted to the Magistrate on the next day. ( 15 ) IN this respect, the learned Public prosecutor has submitted that 24-3-1985 was Sunday and therefore, the report was sent on the next day during morning hours because the Courts were observing morning hours during those days. Much does not turn upon the fact that the report was sent to the Magistrate on the next day but a comparative reading of the statement of PW 5 Shivsingh and PW 19 Khushalsingh clearly goes to show that the FIR Ex. P 14 is a post investigation document and much reliance cannot be placed on it. This view, which we have taken will be further stengthened when we will discuss the evidence of the witnesses. ( 16 ) IT is no doubt true that all the four eye witnesses of the occurrence i. e. PW 5 Shivsingh PW 7 Karansingh, PW 10 Gopalsingh and PW it Shyamsingh have categorically stated that this occurrence took place somewhere between 7. 10 a. m. to 7. 15 a. m. near Kailash Pan Bhandar and the shop of Bhanwarsingh, on the road situated between the gate of Banswara Syntex Mills and Khandu Colony gate. 10 a. m. to 7. 15 a. m. near Kailash Pan Bhandar and the shop of Bhanwarsingh, on the road situated between the gate of Banswara Syntex Mills and Khandu Colony gate. It has been further stated by these witnesses that these 12 accused persons, out of whom, Natwarsingh, Bahadursingh and Ramdeosingh were armed with swords and Ramsingh Labana was armed with a Dhariya and Raju was armed with a Pharsi and other accused-persons were armed with lathies, assaulted the deceased Shyamsingh and inflicted number of injuries to him by their weapons, by which, he fell down. They have further stated at the trial that beating was given even after Shyamsingh fell down. Whereas, their initial case in the FIR and in the Police statements was that injuries were inflicted on the person of Shyamsingh till he fell down and thereafter, it was told by these accused-persons that enemy should be killed otherwise he will take a revenge. Thereafter, accused Bahadursingh lifted one heavy stone and threw it on the face of Shyamsingh. That stone was weighing about 8 to 12 Kgs. Thereafter, in spite of the fact that Shyamsingh was seen alive, although the common object of the unlawful assembly was to kill him, Bahadursingh told him that he has taken his revenge and now the enemy should suffer his agony and thereafter, he went away and Shyamsingh was left in a stage of suffering with agonies. Thereafter, when Shyamsingh was shifted to the Hospital, he died of the injuries. ( 17 ) P. W. 17 Dr. S. L. Jain has proved his post mortem report Ex. P 23. He has stated that injury report of the deceased was not prepared because he was in a very serious condition and therefore, he was immediately shifted to the operation theatre. The post mortem examination of the dead body was conducted by a Medical Board consisting of Dr. R. R. Nagora, (M. S. Orthopaedics), Dr. S. N. Jain, Medical Jurist and Dr. D. N. Sharma, M. S. (ENT) and the Medical Board has given its report Ex. P 23, which has been proved by PW 17 Dr. S. L. Jain. According to PW 17 Dr. S. L. Jain, out of 16 injuries received by the injured, injuries No. 13 was a surgical incision and injuries Nos. 1, 2, 3, 4, 7, 8, 14 and 15 were incised wounds. Injuries Nos. P 23, which has been proved by PW 17 Dr. S. L. Jain. According to PW 17 Dr. S. L. Jain, out of 16 injuries received by the injured, injuries No. 13 was a surgical incision and injuries Nos. 1, 2, 3, 4, 7, 8, 14 and 15 were incised wounds. Injuries Nos. 5, 6, 9 and 12 were lacerated wounds. Injury No, 10 was a haemotoma and injury No. 9 was a fracture of the middle cranial fossa on left side. Injury No. 16 consisted of four bruises : one of the side. Injury No. 16 consisted of four bruises : one of the size of 5 cm. x 2. 5 cm. on the left shoulder; the other of the size of 5 cm. x. 1 cm. just below the above bruise and abrasions 6 cms. long at the left supra scapular region; the third of the size of 5 cm. x 1/2 cm. at the lower 1/ 3rd of left leg on lateral side and the fourth of the size of 12 1/2 cm. and 7 1/2 cm. over the left culteal region. There were multiple abrasions of the size of 5 cm, 4 cm. on the left forearm. ( 18 ) P. W. 17 Dr. S. L. Jain has stated that his face was swollen and there were number of injuries on his face and head. His right eye was totally lost on account of injuries. According to him, injuries Nos. 9, 10 and 11 individually and cumulatively were sufficient to cause the death of the injured and injuries Nos. 1 to 8 were quite serious and could cumulatively result in his death. In the opinion of the Medical Board, the cause of death was due to head injury leading to shock. According to the Medical Board, all these injuries were ante-mortem in nature. Thus, it is clear from the testimony of PW 17 Dr. S. L. Jain, that the injured has died on account of these injuries and these injuries were sufficient in the ordinary course of nature to cause his death and, therefore, it is a case of homicidal death. ( 19 ) IT has been contended by Mr. Bohra, the learned Public Prosecutor for the State that when the version of the eye witnesses is fully supported by the testimony of PW 17 Dr. ( 19 ) IT has been contended by Mr. Bohra, the learned Public Prosecutor for the State that when the version of the eye witnesses is fully supported by the testimony of PW 17 Dr. S. L. Jain, then the testimony of the eye witnesses should be believed and conviction and sentences recorded against the accused-appellants deserve to be sustained. ( 20 ) MR. M. M. Singhvi, the learned counsel appearing for the accused-appellants has stoutly opposed this submission. He has submitted that these four eye witnesses who have been set up by the prosecution are not eye witnesses of the occurrence. Their presence at the place of the occurrence is totally unnatural and their conduct is against normal human behaviour and therefore, they are totally unbelievable witnesses. In this respect, he has drawn our attention to two patent facts which must be held as per him to be sufficient to discredit the testimony of these four alleged eye witnesses. ( 21 ) MR. Singhvi has submitted that these eye witnesses have stated that accused-appellant Natwarsingh took a leading part in this assault. It is alleged that it was accused Natwarsingh, who initially struck a blow with his sword on the face of Shyamsingh whereas the testimony of PW 8 Chhogalal Chowkidar, who was on Guard-duty on the gate of the Banswara Syntex Mills on the date of the occurrence is that accused Natwarsingh left the Mill along with PW 5 Shivsingh and PW 7 Karansingh and when he left the Mill, he was totally unarmed. He left the Mill after about 2-3 minutes when Shyamsingh left the Mill. If that be so, then accused Natwarsingh could not have formed part of that unlawful assembly which was hiding behind the tea and betel cabins situated in between the Factory gate and Khandu Colony Gate and he could not have been armed with a sword. All the four eye witnesses have categorically stated that he was armed with a sword and initially attacked Shyamsingh with his sword on his face. Accused Natwarsingh was on duty in the night shift and he left the factory with PW 5 Shivsingh and PW 7 Karansingh. All the four eye witnesses have categorically stated that he was armed with a sword and initially attacked Shyamsingh with his sword on his face. Accused Natwarsingh was on duty in the night shift and he left the factory with PW 5 Shivsingh and PW 7 Karansingh. It has been admitted by PW 5 Shivsingh and PW 7 Karansingh that PW 8 Chhogalal was on guard - duty on the gate of the Banswara Syntex Mills and, therefore, when these eye witnesses could give false statement as regards participation of accused Natwarsingh, there is no guarantee of the fact that they will speak truth for others also. ( 22 ) MR. Singhvi next drew our attention to the statements of these four alleged eye witnesses, who have stated that after Shyamsingh fell down, these accused - persons gave a lalkara that enemy should be killed otherwise he will take a revenge and after giving this Lalkara, it is alleged that accused Bahadursingh lifted a heavy stone weighing about 8 to 10 Kgs, and threw it on the face of Shyamsingh. PW 17 Dr. S. L. Jain has stated that when a heavy stone weighing about 8 to 12 kgs, is thrown on the face of man, it will certainly crush his face. However, no crush injury was detected by Dr. S. L. Jain. or other Members of the Medical Board on the person of the deceased Shyamsingh. PW 17 Dr. S. L. Jain has categorically stated that stones thrown on the face or the head can only cause lacerated wounds or bruises or accumosis coupled with crush injury. As stated by us above, no crush injury was found either on the head or on the face of injured Shyamsingh as stated by PW 17 Dr. S. L. Jain. a stone cannot cause incised injuries. Only four lacerated wounds were found on the person of the deceased and they are injuries Nos. 5, 6,9, and 10. Injury No. 10 probably is the result of injury No. 9 or may be a result of an independent injury. PW 17 Dr. S. L. Jain has categorically stated that injuries Nos. 5, 6, 9, 10, 11 and 12 cannot be caused by stone Art. 10 and none of these injuries have been received on account of throwing of stone weighing about 8 to 10 kgs. PW 17 Dr. S. L. Jain has categorically stated that injuries Nos. 5, 6, 9, 10, 11 and 12 cannot be caused by stone Art. 10 and none of these injuries have been received on account of throwing of stone weighing about 8 to 10 kgs. The rest of the injuries are incised wounds and bruises. Bruises are situated on the scapular or supra scapular region or on the left gulteal region or forearm. They are not situated on the head or the face of the deceased. When all these witnesses have categorically stated that a heavy stone weighing about 8 to 10 kgs. was thrown on the face of the deceased and that story stands totally belied by the evidence of PW 17 Dr. S. L. Jain, where is the guarantee that these accused-persons are speaking the truth. It clearly shows that these eye witnesses have not seen the occurrence. These two patent infirmities in their statement are enough to discredit their testimony, as per Mr. Singhvi. ( 23 ) SO far as this contention of Mr. Singhvi is concerned, in India generally witnesses do not speak the whole truth. Their Lordships of the Supreme Court have time and again pointed out that the Maxim "falsus in uno falsus in omnibus" cannot be mechanically applied and the mere fact that the evidence of some of the prosecution witnesses was found unsafe for convicting the co-accused, is by itself no ground for rejecting the whole body of their testimony. It only puts the court on its guard to carefully scrutinise their evidence. Thus, merely because one of the injury which has been alleged by the witnesses to have been caused by a stone weighing about 8 to 12 Kgs. by accused Bahadursingh and the involvement of accused Natwarsingh is doubtful, the entire case of the prosecution cannot be thrown out. It can only be thrown out when the falsehood is so intermingled with the truth that the grains cannot be separated from the chaff. Thus, only on these two grounds, this prosecution story cannot be thrown out totally. ( 24 ) ALL the four eye witnesses have further stated that at the time of the occurrence, they were standing at particular places. PW 5 Shivsingh has stated that he was standing below a tree about 15 to 20 feet away from the gate of the Banswara Syntex Mills. ( 24 ) ALL the four eye witnesses have further stated that at the time of the occurrence, they were standing at particular places. PW 5 Shivsingh has stated that he was standing below a tree about 15 to 20 feet away from the gate of the Banswara Syntex Mills. PW 7 Karansingh has stated that initially, he was standing in between the gate neither outside nor inside Banswara Syntex Mills but later, he came out of the gate and he was standing near the Gate of the Mill. The other two witnesses viz. , PW 10 Gopalsingh and PW 11 Shyamsingh have stated that they were standing on Banswara-Dohad Road near the bridge. The places where these witnesses were standing have not been shown in the site plan. If these witnesses were the relevant eye witnesses and if the site was inspected at the behest of PW 5 Shivasingh then there is no reason why the placement of these witnesses have not been shown in the site plan. This is a further ground to show that these witnesse were not present at the time of the occurrence and they were later cooked to support the prosecution case. ( 25 ) IN this respect, reliance has been placed off a decision of this Court in Hakumat Rai v. State of Rajasthan, 1987 Cri LR (Raj) 718 , wherein it has been observed as under :"it has not been shown in the site plan Ex. P. 2 as to where the prosecution witnesses who had witnessed the occurrence were standing. This fact should have been mentioned in this site plant by the investigating Officer. Not mentioning the place of standing of the witnesses creates doubt in the presence of the proseuction witnesses and creates doubt in the story. "reliance was also placed on a Division Bench decision of this Court in Savia v. State of Raj. 1985 Cr LR (Raj) 18, wherein it that been observed that in the site plan and site inspection memo, it has not been mentioned as to where these witnesses were standing when the incident took place and the witnesses have seen this occurrence. It is a serious infirmity and it persuades us to hold that the witness was not present near about the place of the occurrence. It is a serious infirmity and it persuades us to hold that the witness was not present near about the place of the occurrence. ( 26 ) IT is no doubt true that in this case also, the place where these witnesses were standing has not been disclosed in the site plan. The investigation is really perfunctory. Although, it has shown that certain tea and betel cabins exist there in between Khandu Gate and Banswara Syntex Mills but which shops belongs to whom has not been disclosed purposely so that independent witnesses, even if they were present may not be examined even by the Court. ( 27 ) ALL these eye witnesses have stated that they do not know whether these shops were open or not ? However, when PW 5 Shivsingh was confronted with his police statement portion A to B of Ex. D 1 that at the time of the occurrence, the security staff of the Banswara Synstex Mills deputed on the Gate and these Tea and betel Cabin-holders have seen the occurrence, he has stated that it is wrong to say that these tea and betel cabins were open and people were present at these cabins and he cannot say whether these cabin-holders have seen the occurrence or not ? PW 7 Karansingh in portion G to H of his police Statement Ex. D 2 has stated that this occurrence has been seen by the Guards posted on the gate of the Banswara Syntex Mills and the Tea and Pan Cabin-holders. PW 11 Shyamsingh has stated in his police statement portion E to F (Ex. D 6) that this occurrence has been seen by the security Guard of Banswara Syntex Mills and the Tea and betel Cabin-holders, whose shops were open and were closed later on. This fact has also been admitted by PW 8 Chhogalal that these tea and betel cabins were open at the time when the occurrence took place but they were closed after incident. Thus, the investigation appears to be interested and faulty and it has failed to take note of the fact that these Tea and Betel cabins were open and still, no attempt was made to examine these witnesses. Thus, the investigation appears to be interested and faulty and it has failed to take note of the fact that these Tea and Betel cabins were open and still, no attempt was made to examine these witnesses. PW 19 SHO Khushalsingh was interrogated about this fact and he has frankely admitted that the investigation remained with him from 24-3-1985 to 4-5l985 but he made no efforts whatsoever to examine the security Gaurd of the Banswara Syntex Mills and these Tea and Betel Cabin-holders. He has recorded the statements of these four eye witnesses on 24-3-1985 itself in the Hospital and when these four witnesses have disclosed that these tea and betel cabins were open and the occurrence has been seen by the security guard and these cabin-holders, still he did not make any effort to investigate the matter and record their statements. He has stated that because he was busy in another murder case, he could not do so. He was unable to tell that when that other murder took place in which he became busy to investigate that matter. Non-examination of the independent witnesses creates a serious doubt in the prosecution story. Examination of interested witnesses and non-examination of independent witnesses also create a serious doubt in the prosecution story. ( 28 ) IN this respect, Mr. Singhvi has placed reliance on a Division Bench decision of this Court in Pancharam v. State of Raj. 1985 WLN ( UC) 583, wherein it has been held that when an occurrence takes place before many persons and only inimical and interested witnesses are produced and independent witnesses who could depose about the occurrence are not examined, it gives rise to an inference that the case is concocted. In that case, it has also been held that between a fact, which may be true and which must be true, a long distance has to be travelled by the prosecution by adducing clear ; cogent and reliable evidence. ( 29 ) NOW this has to be seen whether the evidence of these four alleged eye witnesses is cogent and reliable so as to inspire confidence in the court that the conviction and sentences recorded against the accused-appellants can be sustained on the basis of such an evidence ( 30 ) IT has been contended by Mr. ( 29 ) NOW this has to be seen whether the evidence of these four alleged eye witnesses is cogent and reliable so as to inspire confidence in the court that the conviction and sentences recorded against the accused-appellants can be sustained on the basis of such an evidence ( 30 ) IT has been contended by Mr. M. S. Singhvi, the learned counsel appearing for the accused-appellants that the genesis of the occurrence is shrouded with mystery. It is an admitted case of the parties that deceased Shyamsingh was not on duty on that day. PW 8 Chhogalal has categorically admitted that he came to the Mill at about 6 a. m. At that time, he took a search. Thus, it is clear that deceased Shyamsingh was not on night duty on that day. It is alleged that Shyamsingh came back on the Mill gate for coming out at about 7. 05 a. m. Nobody has said about it as to for what work, he came to the Mill and for what purpose, he spent one hour and five minutes in the Mill, when deceased Shyamsingh was not on duty on the date of the occurrence, how could these accused persons conceive that Shyamsingh could be found in the Mill and so they should stand in the way, waiting for him, so as to kill him as soon as the Shift is over. It has been admitted by PW 8 Chhogalal that accused Natwarsingh was on night duty. He is said to be the President of the rival Union. It is nobodys case that Shyamsingh met with accused Natwarsingh and even if, he has met with him, the other 11 accused-persons were not working in the Banswara Syntex Mills in the night shift and, therefore, there was no occasion for Natwarsingh to contact and converse with other accused-persons. It has not been disclosed as to how these accused-persons came to know about the presence of Shyamsingh in the Mill and about the time when Shyamsingh will come out of the Mill. It has also not been disclosed why Shyamsingh was going towards Khandu Gate. Thus, the genesis of the occurrence is totally shrouded with mystery. It has not been disclosed as to how these accused-persons came to know about the presence of Shyamsingh in the Mill and about the time when Shyamsingh will come out of the Mill. It has also not been disclosed why Shyamsingh was going towards Khandu Gate. Thus, the genesis of the occurrence is totally shrouded with mystery. One fact makes this particular part of the testimony totally mysterious and keeps one guessing whether the occurrence has taken place in the manner, it has been stated by these eye witnesses, ( 31 ) P. W. 8 Chhogalal has stated that at the time when Shyamsingh left the Mill, accused Natwarsingh, PW 5 Shivsingh and PW 7 Karansingh also left the Mill during that very time. Thereafter, he has stated that initially Shyamsingh came out of the Mill and after 2-3 Minutes, PW 5 Shivsingh, PW 7 Karansingh and accused Natwarsingh went out of the Mill. Later, he has stated that two persons cannot go out of the Mill simultaneously therefore, initially, Shyamsingh went out of the Mill and thereafter, accused Natwarsingh came out of the Mill and then he was followed by PW 5 Shivsingh and ultimately PW 7 Karansingh also came out. He was then confronted with portion C to D of his Police Statement and he had admitted that he gave that statement. In portion C to D of his Police Statement Ex P 21, he has stated that deceased Shyamsingh came out of the Mill at about 7. 05 a. m. followed by Shivasingh, Karansingh and accused Natwarsingh. Thus, it appears that he has tried to save himself from the clutches of the Management who has instructed him not allow more than one person to come out of the gate at a time. Be that as it may, it appears that injured Shyamsingh, PW 5 Shivasingh PW 7 Karansingh and accused Natwarsingh came out of the factory (Mill) simultaneously. ( 32 ) P. W. 8 Chhogalal has stated that he has enquired from P. W. 5 Shivsing and P. W. 7 Karansingh about their gate-passes, to which, they replied that they have no gate-passes with them and during this enquiry, Shyamsingh left the Mill meaning thereby that when this enquiry was being made, Shyamsingh was very much there with them. When P. W. 8 Chhogalal was categorically, asked as to how he has stated in portion C to D of his police statement Ex. P. 21 that all the four persons went together, he has stated that he does not know how he got it written. Thus, he was not in a position to deny this fact. These persons came out of the factory together is further fortified from his report Ex. P. 26. He has proved that report in the statement given in the court and in that report, it has been written that about 7. 05 P. W. 5 Shivsingh and P. W. 7 Karansingh went out of the gate after seeking his permission. Initially, he told them that they should not go out because the shift is going to be over but Shyamsingh told him that he will send them back in the Mill within five minutes after taking tea and, therefore, he allowed them to come out. Thus, from this testimony, it is clear that Shyamsingh, Shivsingh and Karansingh left the factory at about 7. 05 A. M. together and they had an occasion to meet with each other. In this report, P. W. 8 Chhogalal has started that after about 10 minutes of these three persons leaving, the factory, the fight started. Thus, the fight was not started within 1-2 minutes of the leaving of the factory by Shyamsingh. It has taken place after about 10 minutes of the leaving of the factory by Shyamsingh. If P. W. 7 Karansingh was standing in between the gate of the factory at that time and P. W. 5 Shivsingh was standing just at a distance of 15 paces under a tree as stated by P. W. 5 Shivsingh and others, P. W. 8 Chhogalal could not have reported the matter to the Management that after about 10 minutes of their leaving the factory, the fight took place and by that time, they did not return back and, therefore, he closed the factory gate and P. W. 5 Shivsingh and P. W. 7 Karansingh could not come inside the Mill. P. W. 8 Chhogalal has made this report as regards the absence of P. W. 5 Shivsingh and P. W. 7 Karansingh to the Management. P. W. 8 Chhogalal has made this report as regards the absence of P. W. 5 Shivsingh and P. W. 7 Karansingh to the Management. If P. W. 5 Shivsingh and P. W. 7 Karansingh were standing there and were in his view, P. W. 8 Chhogalal could not have reported the matter to the Management that after going from Factory, they have not come back. If P. W. 7 Karansingh has not left the factory, there was no occasion for P. W. 8 Chhogalal to report that he has left the factory and has not come back. ( 33 ) P. W. 7 Karansingh has stated that he came out of the factory without seeking anybodys permission whereas it has been categorically stated by P. W. 8 Chhogalal that nobody can enter the factory and leave it without permission of the gate Guard and without taking of search by him. What happened in between these 10 minutes i. e. in between the period Shyamsingh, Karansingh and Shivsingh left the factory and the time, when the fight started, nobody is in a position to explain this gap. Thus, it is not clear how the occurrence has taken place. ( 34 ) THERE is no doubt that the occurrence has taken place in which Shyamsingh has received number of injuries and died because of those injuries but this occurrence has not taken place within the visibility of the gate Guard P. W. 8 Chhogalal because he has stated that after about 10 minutes of the leaving of the factory by Shyamsingh, Shivsingh and Karansingh, somebody came there and informed him that Shyamsingh has been killed. Thus, he has not seen the occurrence and on hearing this information, he had closed the gates of the Factory. ( 35 ) FROM the aforesaid dicussion of the evidence, it is clear that the genesis of the occurrence is totally shrouded in mystery. It is hot known why Shyamsingh came there in the Mill at 6. 00 A. M. and remained there for one hour and five minutes and how the accused-persons came to know about his presence in the factory so as to stand in wait for him armed with deadly weapons. ( 36 ) IT was next contended by Mr. It is hot known why Shyamsingh came there in the Mill at 6. 00 A. M. and remained there for one hour and five minutes and how the accused-persons came to know about his presence in the factory so as to stand in wait for him armed with deadly weapons. ( 36 ) IT was next contended by Mr. Singhvi that although apparently, it looks quite probable and believable that these four alleged eye witnesses, who support each other have seen the occurrence and were present there at the place of the occurrence but on a closer scrutiny of the evidence, it can safely be established that they are cooked up witnesses and they were not present at the places from where, it is alleged, that they have seen the occurrence. ( 37 ) WE have critically examined the evidence in the light of these submissions made by Mr. Singhvi and we find great force and weight in these submissions. P. W. 5 Shivsingh has admitted that he was on overtime night duty in the Mill on that day and that night shift started at 11. 30 P. M. . in the night of 23-3-1985 and was to be over at 7. 30 PM in the morning of 24-3-1985. P. W. 8 Chhogalal has also admitted that P. W. 5 Shivsingh was on night duty along with P. W. 7 Karansingh and accused Natwarsingh. Be that as it may, he sys that he did the overtime duty only up to 7. 00 P. M. whereas the shift becomes over at 7. 30 AM. He farther states that he came out of the Mill at 7. 00 AM and went to the Colony, where he lives and that colony is situated in the back of the Mill. The distance has been estimated by the Court as 400 paces i. e. 2000 feets from the Mill gate. He has stated that after doing the night duty, he left the Mill half an hour before the closer of the Shift and went to his quarter, reached there at 7. 05 AM and immediately thought of taking the second overtime duty and came back to the Mill to enquire about it and entered the Mill Gate at 7. 10 AM and when that second overtime duty was not given to him, he came back on the Mill, Gate at 7. 15 AM. 05 AM and immediately thought of taking the second overtime duty and came back to the Mill to enquire about it and entered the Mill Gate at 7. 10 AM and when that second overtime duty was not given to him, he came back on the Mill, Gate at 7. 15 AM. He has further stated that he was informed by somebody whom he is unable to name that deceased Shyamsingh wanted to meet him. He, therefore, went to the main Gate of the Mill at 7. 00 AM but he was not found there and, therefore, he went to his quarter and came back at 7. 10 AM and even at that time, Shyamsingh was not there at the gate of the Mill. He did not see Shyamsingh before 7. 15 AM. When he saw Shyamsingh, he was inside the Mill and Shyamsingh was leaving the Mill. He followed Shyamsingh and came out of the Mill and stood under a tree, 15 paces away from the Mill gate. If Shyamsingh wanted to meet P. W. 5 Shiv Singh and P. W. 5 Shiv Singh was keen to meet him, where was the occasion for Shyamsingh to stand under a tree. He should have followed Shyamsingh to meet him and if he did not want to follow him, he should have called him because he was in his view and should have enquired from him as to why he wanted to meet him but nothing of this type was done. ( 38 ) P. W. 8 Chhogalal was on duty from 6 AM and he saw Shyamsingh entering into the gate of the Mill at 6 AM and took a search. Thus, this story set up by the eye witnesses that P. W. 5 Shivsingh left the Mill at 7 AM, went to his quarter, came back and again entered the Mill and then left it appears to be totally false because P. W. 8 Chhogalal nowhere says that P. W. 5 Shiv Singh was allowed to leave the gate the Mill at 7 AM and he again entered the Mill gate at 7. 10 AM. The testimony of P. W. 5 that he left the Mill at 7 AM and went to his quarter, which is 400 paces away from the gate of the Mill and then came back to (of) the Mill at about 7. 10 AM. The testimony of P. W. 5 that he left the Mill at 7 AM and went to his quarter, which is 400 paces away from the gate of the Mill and then came back to (of) the Mill at about 7. l0 AM to enquire about his overtime duty appears to be false and against normal human conduct because nobody wastes his energy to enquire about his overtime soonafter reaching his home after completion of his shift. If at all he wanted to do so, he would not have left the factory. ( 39 ) P. W. 5 Shiv Singh has stated that he went to the Factory to enquiry about overtime duty and did not meet the Shift Incharge but he enquired about it from his friends who told him that he should not take overtime duty. When that fact was to be enquired from the Shift-Incharge and he did not meet with the concerned Shift-Incharge about his overtime duty, this version also appears to be false. Further, when his duty was up to 7. 30 AM, there was no occasion for him to leave the factory at 7. 00 AM and come back at 7. 10 AM to enquire about the overtime duty. He has further stated that after he was told by his friends Motisingh and Suryasingh that he should not perform overtime duty, he became satisfied and come back at the Mill Gate and after his search, he came out of the Mill Gate and was standing under tree. He has also stated that he received a message that the President of the Union Shri Shyamsingh wanted to meet him and Shyamsingh was within his view when he left the factory but neither he followed him nor he called him but stood under a tree, 15 paces away from the Mill Gate. Thus, the manner in which he has behaved also appears to be unnatural. His verison about going to the quarter from the factory and coming back is also not supported by P. W. 8 Chhogalal, who was on duty at the factory gate from 6 AM. His presence under the tree is also not supported by P. W. 8 Chhogalal, who is a prosecution witness and has not been declared hostile. His testimony cannot be easily brushed aside because he is a totally independent witness who does not belong to any Union. His presence under the tree is also not supported by P. W. 8 Chhogalal, who is a prosecution witness and has not been declared hostile. His testimony cannot be easily brushed aside because he is a totally independent witness who does not belong to any Union. ( 40 ) SIMILARLY, the presence of P. W. 7 Karansingh at the factory gate at 7 AM also is most unnatural. He says that he was the Shift-Incharge. He has to lake over the charge when he joined the Shift. He collected the cards from the Labourers and delivered them to the Time -Office for being punched. That duty which he performed on 21-3-1985 at 11. 30 PM was to be over at 7. 30 AM on 24-3-1985 but he says that he left his shift and did it in which he was working and came to the factory gate at 7 AM because he was informed that a fight is going to take place outside the factory gate. He was informed about it by the persons of the morning shift, who came into the factory. He has not dislosed as to who were those persons and what type of information was given by them to him and between who the fight was going to lake place. ( 41 ) FROM the evidence on record, it is clear that the eye witnesses are highly interested in Shyamsingh because they became the eye witnesses of the occurrence. They tried to rescue him also. They took his body to the Hospital and remained with him, lodged the report in the Police and thereafter, they have given their statements in support of the occurrence. Thus, they are fully interested in the welfare of Shyamsingh. If anybody has informed P. W. 7 Karansingh that Shyamsinghs enemies have collected outside the factory gate armed with such deadly weapons viz. Swords, lathies, Pharsi and Dhariya etc. , the first impulse of Karansingh would have been to search Shyamsingh and told him not to leave the factory gate because a murderous assault is planned against him and he would be more safe in the factory premises. Swords, lathies, Pharsi and Dhariya etc. , the first impulse of Karansingh would have been to search Shyamsingh and told him not to leave the factory gate because a murderous assault is planned against him and he would be more safe in the factory premises. The instinct of self preservations would have impelled Shyamsingh not to leave the factory premises and he would certainly have sought help of the Officers of the Mill to protect his person, rather than going out of the factory unarmed and face a murderous assault. P. W. 7 Karansingh would have been the first person to have informed him about it that some labourers have informed that a murderous assault is being planned against him. A Shift-Incharge is not expected to behave in such an irresponsible manner that neither he will collect the cards from the time office nor he will deliver them back to the labourers and nor he will hand over the charge of the Shift and will come to the Factory Gate as an spectator to see what is going to happen at the gate of the Mill and will stand in between the gate to wait for the occurrence, which was going to take place. This is the most unnatural conduct which cannot be explained in any other manner than to treat P. W. 7 Karansingh as a planted witness. ( 42 ) OF Course, it has been stated by P. W. 8. Chhogalal that P. W. 7 Karansingh has left the factory gate at 7. 05 AM with Shyamsingh to take tea and the occurrence has taken place after about 10 minutes thereafter but he does not support this version that he was standing at the factory gate from 7 AM to 7. 10 AM. P. W. 7 Karansingh when he was examined by the Police has initially stated in portion A to B of Ex. D. 2 dated 24-3-1985 that today, at about 7. 15 AM, he heard in the Syntex Mill that a fight has taken place outside the gate of the Mill and on hearing this, he came at the gate of the Mill. In portion C to D of his police statement Ex. D2, he has further stated that he was not allowed to come out of the factory gate. 15 AM, he heard in the Syntex Mill that a fight has taken place outside the gate of the Mill and on hearing this, he came at the gate of the Mill. In portion C to D of his police statement Ex. D2, he has further stated that he was not allowed to come out of the factory gate. When he was confronted with these portions of his statement, he has stated that he did not state this before the Police that he was not allowed to come out of the gate of the Mill. He actually came out of the gate of the Mill and was not stopped. This is what he has stated at the trial. He has further stated that he need not seek any permission to leave the factory gate. This fact appears to be false in view of the evidence of P. W. 8 Chhogalal. ( 43 ) BE that as it may, now P. W. 7 Karansingh says that he did not state the time as 7. 15 AM in portion A to B of his police Statement Ex. D2 but he stated the time of 7 AM and the rest of the portion of A to B of his police statement was given by him. This means that after the fight started, he was informed and according to him, this fight has taken place before 7 AM and on hearing that a fight has taken place outside the factory gate, he came to the factory gate. Thus, this version given by this witness P. W. 7 Karansingh is in contradiction with his statement that he came to the factory gate on hearing from labourers of the morning shift that some fight is going to take place outside the factory. Such contradictions in the testimony of the witnesses are not possible if they have seen the occurrence. ( 44 ) P. W. 5 Shiv Singh has categorically stated that he did not see Shyamsingh near the factory gate before 7. 15 AM. Thus, the occurrence has definitely taken place after 7. 15 AM and not prior to that and this is what has been stated by P. W. 8 Chhogalal. This, the statement of P. W. 7 Karansingh stands belied by the testimony of P. W. 5 Shivsingh and P. W. 8 Chhogalal that the fight took place before 7. 15 AM. Thus, the occurrence has definitely taken place after 7. 15 AM and not prior to that and this is what has been stated by P. W. 8 Chhogalal. This, the statement of P. W. 7 Karansingh stands belied by the testimony of P. W. 5 Shivsingh and P. W. 8 Chhogalal that the fight took place before 7. 15 AM. Nobody could go out of the gate of the Mill without permission of the gate guard and without undergoing a search. This is what has been stated by P. W. 8 Chhogalal and, therefore, the contention of P. W. 7 Karansingh that he had not to seek anybodys permission to leave the factory gate cannot be believed. ( 45 ) P. W. 8 Chhogalal has, of course, stated that he left the factory with his permission and went with Shyamsingh but he does not say that he was standing there in between the gate of the Factory, which was open. Thus, his presence at that hour of the shift at the factory gate as stated by him appears to be most unnatural and unbelievable. ( 46 ) NOW, we take up the testimony of P. W. 10 Gopalsingh and P. W. 11 Shyamsingh. Both of them are not the employees of the Banswara Syntex Mills. They are the employees of the Banswara Fabric Mills, which is a separate industrial unit. They were living in the Banswara Fabrics Colony, which is situated at a distance of 2 Kilometers from Banswara Syntex Mills. They have registered their presence near the Banswara Syntex Mills Gate on the pretext that they came there to take tea. In City like Banswara, nobody is to travel 2 kilometers for taking tea. Both of them have stated that they were on leave prior to the date of the occurrence and they have not joined Banswara Fabric Mills after that date. Thus, it may be true that they were not the employees of the Banswara Fabric Mills on the date of the occurrence because if they were the employees of the Banswara Fabric Mills, they should have joined the factory after the occurrence but they have not done so. It has been admitted by them that there is a tea stall in the Banswara Fabric Mills and one man engages himself in running a tea stall there. It has been admitted by them that there is a tea stall in the Banswara Fabric Mills and one man engages himself in running a tea stall there. P. W. 10 Gopalsingh has stated that there was no milk in the tea stall of the factory and, therefore, he came there to take tea and there also no tea stall was open meaning thereby that before the occurrence, had gone to the tea stalls situated in between Banswara Syntex Mills and Khandugate. However, P. W. 11 Shyamsingh has stated that he did not go inside the Banswara Fabric Mills Premises because he was on leave and milk was not available with the tea stall holder and, therefore, they came to take tea on the tea stalls situated near Banswara Syntex Mills but before they could go towards tea stalls, the occurrence took place. Thus, they contradict each other in material particulars. ( 47 ) BE that as it may, P. W. 10 Gopalsingh has initially stated that he was on leave but later, he has stated that his duty in the Banswara Fabric Mills was from 7 AM to 3 PM and on that day, his duty was between 1 PM to 7 AM, although he stated up to 3 AM but that should be 7 AM. Initially, he has stated that he was on leave 2 days prior to the date of the occurrence and joined the duty after the occurrence. Later, he has stated that he joined duty before 2-3 days of the occurrence and thereafter, fell ill. Later he stated that he did not join the duty before the occurrence and his duty was from 11 PM to 3 AM, which does not appear to be correct and it must be up to 7 AM. He was asked that there is a hotel in the Banswara Fabric Mills itself and as to why he did not go there to take tea. He stated that he went there but milk was not available and, therefore, he came out of the Factory premises. Thus, it appears that he was on duty and he left the Mill on the pretext that no milk was available in the tea-stall situated in the Mills, otherwise there was no occasion for him to come out of the Mill. Thus, it appears that he was on duty and he left the Mill on the pretext that no milk was available in the tea-stall situated in the Mills, otherwise there was no occasion for him to come out of the Mill. Even if it is assumed that he went inside the Banswara Fabric Mills to take tea and came out because milk was not available there, this testimony is also belied by P. W. 11 Shyamsingh, who says that they did not go inside the Banswara Fabric Mills because there they were on leave. ( 48 ) NOW, P. W. 10 Gopalsingh has stated that he joined the duty after some days of the occurrence but later, in his cross-examination, he has stated that he did not join the duty after the occurrence. This is what has been stated by P. W. 11 Shyamsingh also. Thus, their presence at Banswara Syntex Mills appears to be unnatural. P. W. 10 Gopalsingh does not say about the shortage of Milk with the tea-stall holder of the Banswara Fabric Mills whereas P. W. 11 Shyamsingh says that they did not take tea at the private tea stall situated near the Banswara Fabric Mills as milk was not available there. Thus, the entire evidence about their coming to the factory gate materially contradicts with each other and so it is unbelievable. ( 49 ) EVEN so far as the occurrence is concerned, the initial version given out by them in their police statement with which they have been confronted was that these accused-persons were standing behind the shop of Banwarsingh hiding themselves there so that they may not be observed. This is what P. W. 7 Karansingh has stated in portion E to F of his police statement Ex. D2 and P. W. 11 Shyamsingh has stated in portion C to D of his Police Statement Ex. D6a. They have been confronted with these statements and they have stated that they did not give such statements. Their earlier version was that these accused persons who were hiding behind the shop of Bhanwarsingh immediately attacked Shyamsingh as soon as he reached near Kailash Pan Bhandar and that was a concerted attack made by these accused persons together. They just came out from behind the shop of Bhanwarsingh and attacked him. Now, this version has been changed. Their earlier version was that these accused persons who were hiding behind the shop of Bhanwarsingh immediately attacked Shyamsingh as soon as he reached near Kailash Pan Bhandar and that was a concerted attack made by these accused persons together. They just came out from behind the shop of Bhanwarsingh and attacked him. Now, this version has been changed. P. W. 19 Shri Khushalsingh has stated that if somebody is standing near Syntex Mills, he can see the persons standing behind the stalls on the police Line side but he cannot see the persons standing behind the stalls situated on Thikariya side i. e. on Kailash Pan Bhandar side. It appears that because of this, the place where these accused-persons were standing, hiding themselves, has been shifted. ( 50 ) IN his cross-examination, P. W. 5 Shivsingh has stated that as soon as Shyamsingh reached near Kailash Pan Bhandar, the accused persons came from behind the tea and betel cabins and attacked him. He has further stated that when he reached near Kailash Pan Bhandar; these accused persons came from behind the cabins situated on the side of Kailash Pan Bhandar. Bhanwarsinghs shop is situated on the west side towards Police Lines. Now, he has categorically stated that these accused persons did not immediately come out and attack him but when Shyamsingh went towards Kailash Pan Bhandar, these accused persons came from behind Kailash Pan Bhandar, went towards; Khandugate, came towards him from near Khandugate and when Shyamsingh saw them coming from Khandugate side, he ran towards Police lines but he was attacked near the tea stall of Bhanwarsingh. This is what has been stated by P. W. 7 Karna Singh also. He was also confronted with his earlier police statement about the presence of the accused persons behind the shop of Bhanwarsingh and attacking Shyamsingh immediately but he has now denied having given such a statement to police. ( 51 ) P. W. 10 Gopalsingh has stated that the accused persons came from Khandu Colony Gate from behind the shops situated on Kailash Pan Bhandar side and some of them came from the shops situated on Bhanwarsinghs stall side. ( 51 ) P. W. 10 Gopalsingh has stated that the accused persons came from Khandu Colony Gate from behind the shops situated on Kailash Pan Bhandar side and some of them came from the shops situated on Bhanwarsinghs stall side. He has stated that the accused persons who were armed with lathies were standing behind Kailash Pan Bhandar and the accused persons who were armed with sharp weapons were standing behind Bhanwarsinghs shop but they came from the side of Khandu Gate. P. W. 11 Shyamsingh has not stated where these accused persons were hiding themselves but he has stated that they came from Khandu Colony Gate side. The Gate of the Khandu Colony is situated at a distance of about 25 paces away from Kailash Pan Bhandar. If these accused persons have come from the side of Khandu Colony Gate, the natural impulse of deceased Shyamsingh would have been to run towards Banswara Syntex Mills Gate and take shelter in the Mills premises because he has seen the accused persons from a distance of about 25 paces. They were his enemies and were coming towards him armed with weapons and were giving lalkaras to kill him but he did not do so. It is alleged that he tried to run away towards the side of Bhanwarsinghs shop and was felled in front of the shop of Bhanwarsingh. This is now the definite case of the prosecution that deceased Shyamsingh before the shop Bhanwarsing, which is situated on police line side and was availed in front of that shop. The site plan Ex. P3 and Site Inspection Memo Ex. P. 2 which have been proved by P. W. 15 Pemji show that the occurrence has taken place in front of Badri Kalals shop. If these alleged eye witnesses have seen the occurrence then such a shifting of the place of hiding of the accused persons and the manner of their coming to the place of the occurrence could not have been possible and these witnesses could not have contradicted themselves in this manner. So much so, now P. W. 5 Shivsingh has stated at the trial that initially four persons viz. , Natwarsingh, Bahadursingh, Ramsingh and Raju, who were armed with sharp weapons came out and they attacked Syamsingh, who fell down and thereafter, others, gave beating to him after he fell down. So much so, now P. W. 5 Shivsingh has stated at the trial that initially four persons viz. , Natwarsingh, Bahadursingh, Ramsingh and Raju, who were armed with sharp weapons came out and they attacked Syamsingh, who fell down and thereafter, others, gave beating to him after he fell down. This is what has been stated by P. W. 7 Karansingh also. However, their initial case was that all the 12 accused persons conjointly encircled Shyamsingh and gave beating to him simultaneously. ( 52 ) ALL these infirmities in the statements of these four eye witnesses viz. , P. W. 5 Shivsingh, P. W. 7 Karansingh, P. W. 10 Gopalsingh and P. W. 11 Syamsingh, clearly go to show that they were not present at the time of the occurrence and their testimony is totally doubtful and it cannot be believed without proper corroboration. It is no doubt that the FIR is reported to have been lodged, soon after the occurrence at 8 AM in which all these four eye witnesses are named but we have already held that it is a post investigation document and keeping in view all these infirmities and improbabilities in the testimony of these witnesses, their presence at the place of the occurrence is totally doubtful. The genesis of the occurrence is totally shrouded with mystery. As stated earlier, the prosecution must prove its case by adducing cogent and convicing evidence, which in this case is lacking. Apparently, if one goes through the statements of these witnesses, it appears that the prosecution story may be true because the injured has received sharp weapon as well as blunt weapon injuries and the matter has been reported to the police immediately and the injured has died because of these injuries but on a closer scrutiny of the evidence on record, we have no option but to come to the conclusion that these four eye witnesses are not at all reliable and their presence at the place of the occurrence where they have alleged that they were standing to witness the occurrence is most unnatural. Their testimony is extremely doubtful as regards participation of accused Natwarsingh in the crime as also as regards throwing the stone on the face of deceased Shyamsingh. They have tried to shift the place where these accused persons were hiding themselves and from where, they came and attacked Shyamsingh. Their testimony is extremely doubtful as regards participation of accused Natwarsingh in the crime as also as regards throwing the stone on the face of deceased Shyamsingh. They have tried to shift the place where these accused persons were hiding themselves and from where, they came and attacked Shyamsingh. ( 53 ) MUCH does not turn upon the recovery of the weapons because most of them have not been found to be blood stained. The testimony of the witnesses that a stone has been used in the occurrence and has been thrown on the face of Shyamsingh has been disbelieved. Even if blood was found on the stone, which was lying near the body of Shyamsingh, it hardly matters. Of course, it is stated that a broken sword has been recovered from Bahadursingh and the piece that has been found on the site tallies with that sword but that is not by itself sufficient to connect the accused Bahadursingh with the crime. ( 54 ) IT was specifically stated by all the four eye witnesses that when they tried to intervene, stones were pelted on them but neither site plan Ex. P3 nor site inspection memo Ex. P. 2 show that stones were found scattered on the road. The witnesses have stated that they advanced 20 to 30 feet from the places where they were standing to intervene in the matter but could not do so as stones were pelted on them. If that be so, pieces of stones should have been found on the road but none has been found on the road. Of course, near the body of Shyamsingh, some pieces of bricks were found but it is nobodys case that bricks were thrown on them. Moreover, these bricks were found near the body of Shyamsingh but they were not found on the road, where the witnesses have reached after advancing from the places where were standing. This further discredits the testimony of the eye witnesses that they have seen the occurrence. ( 55 ) IT was contended by Mr. M. M. Singhvi, learned counsel appearing for the accused-appellants that the motive that has been disclosed for the occurrence is not sufficient to cause the death of Shyamsingh. This further discredits the testimony of the eye witnesses that they have seen the occurrence. ( 55 ) IT was contended by Mr. M. M. Singhvi, learned counsel appearing for the accused-appellants that the motive that has been disclosed for the occurrence is not sufficient to cause the death of Shyamsingh. If Shyamsingh after leaving B. M. S. has joined INTUC, that is no ground for anybody to kill him and if the motive was the personal enmity with Bahadursingh on account of an incident that has taken place with Shyamsingh on 12-3-1985 about which a report was made by Bahadursingh which had been marked as Ex. P. 50 then other accused persons had no grouse against Shyamsingh and there was no reason for them to participate in a murderous assault. Moreover, the causing of a simple injury which had already healed as is clear from Ex. P. 30 the arrest memo of Bahadur singh, this probably was not a good ground to kill Shyamsingh. ( 56 ) THUS, when the testimony of the eye witnesses have become doubtful and the motive for the murder is also not worthy of reliance and when the manner in which the witnesses have stated about the happening of the occurrence has also not been believed and when it has been held that genesis of the crime is shrouded with mystery then the only conclusion that can be reached in the facts and circumstances of this case is that the conviction of the accused appellant cannot be sustained and they deserve acquittal by giving them the benefit of doubt. ( 57 ) IN the result, this appeal succeeds. The conviction and sentence recorded by the learned Session Judge, Banswara under Section 148 and 302/149, IPC against the accused - appellant are set aside and they are acquitted of the aforesaid offences by giving them the benefit of doubt. They are in Jail and if they are not wanted in any other case, they be released forthwith from custody. Appeal allowed.