JUDGMENT 1. - This appeal is directed against the judgment dated 1.11.91, passed by the Additional Sessions Judge, Bali, by which the learned Additional Sessions Judge convicted accused-appellants Sadiya, Khima Ram and Pooniya for the offences under Sections 304 Part I, 147 and 447 I.P.C. and sentenced each of them to undergo eleven years rigorous imprisonment and a fine of Rs. 250/- each for the offence under Section 304 Part I, I.P.C., one year's rigorous imprisonment and a fine of Rs. 200/ for the offence under Section 147 I.P.C. and three months' rigorous imprisonment and a fine of Rs. 50/- for the offence under Section 447 I.P.C. and in default of payment of fine, each of the aforesaid three accused-appellants were directed to undergo two months, one month's and fifteen days rigorous imprisonment for the aforesaid offences, respectively. Accused-appellant Raghuveer Singh was convicted for the offence under Section 304 Part 1/149 or 304/Part 1/34 I.P.C. and was sentenced to nine years' rigorous imprisonment and a fine of Rs. 3,000/- and in default of payment of fine further to undergo six months rigourous imprisonment. He was, also, convicted for the offences under Sections 147 and 447 I.P.C. and sentenced to one year's rigorous imprisonment and three month's rigorous imprisonment and a fine of Rs. 1,000/- and 500/-respectively and in default of payment of fine to further undergo three months' and one month's rigorous imprisonment for these offences respectively. All the sentences of the accused-appellants were directed to run concurrently. 2. Appellants Raghuveer Singh, Saddiya, Pooniya, Khima and Hansiya were tried by the learned Additional Sessions Judge, Bali, for the offences under Sections 302, 147, 148, 149 and 448 I.P.C. The case of the prosecution, in nut-shell, is that on 14.9.88, at about 4.00/4.30 p.m., Shiv Darshan Singh was ploughing his field by a tractor. At that time accused Raghuveer Singh, Pooniya Rcbari, Sadiya Rcbari, Khima Bhil and L.abu Singh Sindal, armed with Lathis, came in his field and gave beatings to Shiv Darshan singh by Lathis, due to which he fell down on the ground. Thereafter accused Pooniya Rebari, on the asking of accused Raghuveer Singh, crushed Shiv Darshan Singh by the tractor. Shiv Darshan Singh's wife Smt. Madan Kanwar was in the field at some distance, who, after hearing the cries of Shiv Darshan Singh, went towards the place where the accused was giving beatings to her husband. Thereafter accused Pooniya Rebari, on the asking of accused Raghuveer Singh, crushed Shiv Darshan Singh by the tractor. Shiv Darshan Singh's wife Smt. Madan Kanwar was in the field at some distance, who, after hearing the cries of Shiv Darshan Singh, went towards the place where the accused was giving beatings to her husband. She, also, raised an alarm, hearing which PW 8 Kan Singh and PW 11 Smt. Ram Pyari, also, came there. Accused-appellants left the place along with the tractor. The tractor was being driven by accused Pooniya Rebari and he went on the tractor to the house of Yogendra Singh and left the tractor there. On enquiry being made by the wife of Yogendra Singh why Shiv Darshan Singh, his wife and children had not come, accused Pooniya told that he had come to take oil and saying so he left the place. Sometime thereafter, Kana came and informed Yogendra Singh that Shiv Darshan Singh has been killed and, therefore, he should proceed towards the place of the incident. Thereafter all of them went on the tractor to the place of the incident near the well and found Shiv Darshan Singh dead and his wife Smt. Madan Kanwar and children were, also, present there and they all were weeping. The report of this incident (Ex.P. 18) was lodged at Police Station, Takhatgarh, by PW 12 Yogendra Singh on 15.9.88 at about 12.30 p.m. The prosecution, in support of its case, examined 16 witnesses. The accused did not examine any witness in their defence. The learned Additional Sessions Judge, after trial, acquitted all the accused of the offence under Section 302 I.P.C. but convicted and sentenced accused-appellants Raghuveer Singh, Sadiya, Khima and Pooniya as stated above. It is against this judgment, convicting and sentencing the accused-appellants that the appellants have preferred this appeal. 3. It is contended by the learned counsel for the appellants that the evidence, produced by the prosecution, is not worthy of credence and the learned lower Court committed an error in convicting and sentencing the accused-appellants. His further submission is that the ocular testimony of the so-called eye witnesses is not support by the medical evidence, rather the medical evidence falsifies the presence of the witnesses at the scene of the occurrence. His further submission is that the ocular testimony of the so-called eye witnesses is not support by the medical evidence, rather the medical evidence falsifies the presence of the witnesses at the scene of the occurrence. According to him, the occular testimony does not find corroboration from the medical evidence regarding the time of the incident and the manner in which the incident is alleged to have taken place. Learned counsel for the appellants, in support of his case, has placed reliance over : Shambhoo Missir and another v. the State of Bihar ( 1990 SCC 518 ) and Narayan Lal and another v. the State of Rajasthan [1992 Cr.L.R. (Raj.) 7] . It is further contended by the learned counsel for the appellants that the appellants have been implicated in this case falsely on account of inimical relations between the complainant party and only the interested witnesses have been produced in evidence by the prosecution and no independent witness has been produced. It has, also, been contended by the learned counsel for the appellants that the learned lower Court committed an error in believing the so-called dying declaration alleged to have been made by deceased Shiv Darshan Singh and, according to him, the facts and circumstances of the case show that no such dying declaration was made by the deceased. It is further contended that if Smt. Madan Kanwar had actually seen the occurrence then there was no question of her asking any question to Shiv Darshan Singh as to who gave him beatings. Putting such questions to the injured as to who had given beating to him, negatives her presence at the scene of the occurrence and her seeing the incident, as alleged by her. In support of this contention, learned counsel for the appellants has placed reliance over : Amrathalinga Nadar v. the State of Tamil Nadu ( AIR 1976 SC 1133 ) . In support of this contention, learned counsel for the appellants has placed reliance over : Amrathalinga Nadar v. the State of Tamil Nadu ( AIR 1976 SC 1133 ) . The learned Public Prosecutor, assisted by the learned counsel for the complainant, on the other hand, has supported the judgment passed by the Court below and submitted that the prosecution witnesses are most natural witnesses and, therefore, their presence at the scene of the occurrence was, also, most natural as the field was being ploughed by Shiv Darshan Singh and it was the day time and Smt. Madan Kanwar had gone there along with her children, the food was prepared there and they took the meals. The presence of PW 8 Kan Singh and PW 13 Smt Ram Pyari was, also, most natural because their crop was standing in the field and they were working in the field of Shiv Darshan Singh. It has further been contended by them that the narration of the facts given by these witnesses in their statements before the Court, show that they were the natural witnesses, had seen the occurrence and they have deposed before the Court, show that they were the natural witnesses, had seen the occurrence and they have deposed before the Court what they had actually seen. Their evidence find support from the medical evidence and, also, from the attending circumstances. Accused Raghuveer Singh had a motive to commit the murder of Shiv Darshan as the relations between them were strained and criminal litigations were pending in between them. According to them, in these circumstances, the judgment, passed by the learned lower Court, convicting and sentencing the accused-appellants, does not require any interference. In support of their contention, the learned Public Prosecutor and the learned counsel for the complainant, have placed reliance over : Dalip Singh and others v. the State of Punjab ( AIR 1953 SC 364 ) , Karnail Singh and others v. the State of Punjab ( AIR 1971 SC 2119 ) , Munna Raja and another v. the State of Madhya Pradesh ( AIR 1976 SC 2199 ) and 1992 SCC (Criminal) 853 . 4. I have considered the submissions made by the learned counsel for the parties. 5. 4. I have considered the submissions made by the learned counsel for the parties. 5. Before dealing with the arguments, advanced by the learned counsel for the appellants, it would be proper, first to look into the nature of the evidence produced by the prosecution in support of its case. The prosecution examined sixteen witnesses and, also, placed reliance over the recoveries of blood-stained lathis, which were the weapons of the offence and the clothes of the deceased, the dying declaration made by deceased Shiv Darshan Singh and the extra-judicial confession of the accused-appellants made before some of the witnesses. PW 8 Kan Singh, PW 11 Smt. Ram Pyari and PW 17 Smt. Madan Kanwar are the three eye witnesses of the occurrence - the evidence of whom is sought to be corroborated by the evidence of PW 12 Yogendra Singh - the brother of the deceased - to whom Kan Singh informed, immediately after the occurrence, that Shiv Darshan has been murdered; and the evidence of PW 7 Chandrapal Singh, who was informed by PW 12 Yogendra Singh regarding the incident and the part played by the accused. PW 7 Chandrapal Singh has not supported the prosecution case during the trial and, therefore, he w'as declared hostile. This evidence is further sought to be corroborated by the evidence of PW 4 Dr. K.N. Mathur, who conducted the autopsy on the dead body of Shiv Darshan Singh. PW 11 Mohammed Ibrahim and PW 10 Vardha Ram are the two witnesses, before whom, as per the prosecution case, the extra-judicial confessions were made by the accused-appellants. As per the prosecution case, accused Hansa, in the presence of Mohammed Ibrahim, made the extra-judicial confession while accused Pooniya made the extra-judicial confession before Vardha Ram. Both these witnesses have not supported the prosecution case during the trial and, therefore, they were declared hostile. PW 2 Kantilal, a photographer, was produced by the prosecution to show that in his shop accused Labhu Singh, Hansa and Khima came and they were talking regarding the murder of Shiv Darshan Singh. This witness has, also, not supported the prosecution case and was declared hostile. PW 3 Ota Ram and PW 9 Dalla Ram are the two Motbir witnesses to the recoveries of the weapons of offence, made on the information and at the instance of the accused-appellants. This witness has, also, not supported the prosecution case and was declared hostile. PW 3 Ota Ram and PW 9 Dalla Ram are the two Motbir witnesses to the recoveries of the weapons of offence, made on the information and at the instance of the accused-appellants. These two witnesses have, also, not supported the prosecution case regarding the recoveries of the Lathis and have been declared hostile. PW 6 Nathu Singh is the Motbir witness with regard to the preparation of Furd-Surat-Haal-a-Lash, the Panchnama and other recovery-memos of the articles recovered from the place of the incident. PW 5 Govind Ram is the Police Constable, who, at the relevant time, was posted at Police Station, Takhatgarh and who took the samples for F.S.L. Examination to the State Forensic Science Laboratory, Jaipur. He first took the samples to the Office of the Superintendent of Police, Sirohi, handed over the sealed articles to PW 14 Achal Singh, who, after preparing a forwarding letter and getting it signed, handed over the articles and the forwarding letter to PW 5 Govind Ram, who deposited the same at the aforesaid Laboratory. PW 15 Bhojraj Singh is the Head Constable, who registered the case. He, also, identified and proved the signatures of Deen Mohammed, the then S.H.O., on various Memos prepared by him. Deen Mohammed, the then S.H.O., could not be produced in evidence because he died without completing the investigation. PW 16 Liyakat Khan took over the investigation after the death of Deen Mohammed, completed the same and presented the challan against the accused. The learned Additional Sessions Judge, while convicting the accused-appellants, placed reliance over the statements of PW 8 Kan Singh, PW 11 Smt. Ram Pyari, PW 12 Yogendra Singh and PW 13 Smt. Madan Kanwar. He, also, found corroboration of the statements of these witnesses from the statement of PW 4 Dr. N.K. Mathur and the recoveries of the Lathi made at the instance and on the information of accused Khima Ram. He, also, believed the evidence produced by the prosecution regarding dying declaration. The learned Additional Sessions Judge, also, observed that the relations between the deceased and the accused-appellant were strained and treated this fact as an additional corroborative evidence. N.K. Mathur and the recoveries of the Lathi made at the instance and on the information of accused Khima Ram. He, also, believed the evidence produced by the prosecution regarding dying declaration. The learned Additional Sessions Judge, also, observed that the relations between the deceased and the accused-appellant were strained and treated this fact as an additional corroborative evidence. The learned Additional Sessions Judge, however, did not believe the motive; he, though believed the prosecution case regarding the incident but, however, opined that the intention cannot be imputed to the appellants. He, therefore, acquitted the accused-appellants of the offence under Section 302/149 I.P.C. and convicted the appellants Sadiya, Khima Ram and Pooniya for the offence under Section 304 Part I, I.P.C. and, also, convicted and sentenced the appellants for the offences under Sections 147 and 447 I.P.C. He, also, convicted and sentenced accused-appellant Raghuveer Singh for the offence under Section 304 Part I read with Section 149 or 34 I.P.C. as well as for the offences under Section 147 and 447 I.P.C. 6. The accused-appellants were tried for the offence under Section 302/149 I.P.C. alongwith the other offences and no charge under Section 302 I.P.C. simpliciter was framed against the appellants and, therefore, the accused could not have been convicted under Section 304 Part I, I.P.C. simpliciter and the conviction of the substantive offence in such a case is unjustified. It has been held by the Apex Court in Subran alias Subramanium and others v. the State of Kerala (1993) 3 SCC 32 ) that:- "A person charged for an offence under Section 302 I.P.C. read with Section 149 I.P.C. cannot be convicted of the substantive offence under Section 302 I.P.C. without a specific charge having been framed against him as envisaged by law. Conviction for the substantive offence in such a case is unjustified because an accused might be misled in his defence by the absence of the charge for the substantive offence under Section 302 I.P.C." The learned Sessions Judge also gave two contradictory findings while convicting the appellants for the offence under Section 304 Part I, I.P.C. instead of Section 302/149 I.P.C. In Para No. 35 of the judgment, the learned Additional Sessions Judge observed that five accused formed an unlawful assembly with the common object to commit the murder of Shiv Darshan Singh and it is proved that accused-appellant Raghuveer Singh, at the time of incident, instigated the other accused, viz., Sadiya, Khima Ram and Pooniya, that Shiv Darshan Singh be done to death and all other accused, in pursuance to that instigation of accused Raghuveer Singh, committed the murder of Shiv Darshan Singh. Though in view of the specific finding no question for alteration of the conviction from Section 302/149 to 304 Part 1/149 I.P.C. or Section 304 has been made out because as per this finding the ingredients of the offence under Section 302/149 I.P.C. clearly stand established but the learned Magistrate altered the conviction to Section 304 I.P.C. by stating that while inflicting the injuries the accused had no knowledge of causing such bodily injuries which could have resulted in the death of the deceased. These two findings, recorded by the learned Additional Sessions Judge are self-contradictory and diametrically opposite. 7. The learned trial Court has, also, misread the medical evidence. While considering the medical evidence the learned Additional Sessions Judge observed that in the post-mortem report it has been mentioned that the stomach contained undigested food, while means "Adpacha Bhojan" and treating it as semi-digested food, the learned Additional Sessions Judge disbelieved the evidence of PW 4 Dr. K.N. Mathur by observing that as semi-digested (ADHPACHA BHOJAN) food was found in the stomach, as per the post-mortem report, therefore, the evidence of the doctor cannot be believed, who has stated that undigested food was found in the stomach and the process of digestion starts after half an hour of taking the food. K.N. Mathur by observing that as semi-digested (ADHPACHA BHOJAN) food was found in the stomach, as per the post-mortem report, therefore, the evidence of the doctor cannot be believed, who has stated that undigested food was found in the stomach and the process of digestion starts after half an hour of taking the food. Learned Additional Sessions Judge, also, misread the evidence with respect to the time of the incident solely on the basis that as semi-digested food was found in the stomach, therefore, the incident took place at about 4.30 p.m., ignoring the statements given by the prosecution witnesses that the food was taken at about 1.00/1.30 p.m. and the incident took place at about 4.30 p.m. The appreciation of the evidence, made by the learned Additional Sessions Judge, is highly unsatisfactory and is based on misreading of the evidence and the facts. 8. Now, I take-up the evidence, which has been relied upon by the learned Additional Sessions Judge in convicting and sentencing the accused-appellants. The first evidence, which has been relied upon by the learned lower Court is the ocular testimony of PW 8 Kan Singh. PW 8 Kan Singh has stated that on the relevant day, at the time of the incident, he was working in the field situated near Nava well, where the crop was standing. He was cutting the grass while his wife was cleansing the utensils. Shiv Darshan Singh was ploughing his land by a tractor while his wife was in the Til crop. He heard Kanwarani Sahiba crying "come ..come, Kanwar Sahib is being beaten." He saw five persons on a tractor but he could not identify them on account of the distance. Thereafter Kanwarani Sahiba called him and when he went near and enquired : who had inflicted injuries to Kunwar Sahib, she told that accused Pooniya, Sadiya, Khima and one Sindal have inflicted injury to Kunwar Sahib. Kunwar Sahib, thereafter, asked him to take him to Sandcrao. He was, also, informed by the deceased that he had been crushed by the tractor and directed to hurry-up. He, thereafter, went to village and informed Yogendra Singh - the brother of the deceased - about the beatings given to the deceased and requested Yogendra Singh to move to the place of the incident bu, he did not say anything more to Yogendra Singh. He went to Rawla on foot. He, thereafter, went to village and informed Yogendra Singh - the brother of the deceased - about the beatings given to the deceased and requested Yogendra Singh to move to the place of the incident bu, he did not say anything more to Yogendra Singh. He went to Rawla on foot. Thereafter he and Yogendra Singh went to the Bus Stand, Sanderao, but as no bus was available there, therefore, they came back to Rawla and boarded the tractor to reach the place of the incident. Initially the tractor was driven by Yogendra Singh's wife and later on it was driven by Ganpat Singh. When they reached the well, by that time Kunwar Sahib was dead and Kanwarani Sahiba and children were sitting under a tree. His wife Ram Pyari was, also, sitting by the side. Yogendra Singh, after having a talk with Kanwarani Sahiba, went back to the village. He has, also, stated that on enquiry, Kunwar Sahib informed him that accused Khima, Pooniya, Sadiya and one Sindal were the persons who inflicted injuries to him but he could not name-out that Sindal and could hear the names of only three persons as Khima, Pooniya and Sadiya.In the cross-examination, he has admitted that for the last several generations, they have been working with Shiv Darshan Singh and his predecessors were, also, working in the Rawla. He has, also, admitted that in going and coming to Sanderao on a tractor, it takes about fifteen to twenty minutes while this distance can be covered on foot in thirty to twenty- five minutes. He has, also, stated that he reached the house of Yogendra Singh at about the Sun-set time. He has, also, admitted that several persons met him in the way but he did not narrate the incident to any of them though some of the persons were known to him. He has, also, admitted that when he reached Rawla, at that time a tractor was standing there. He has, also, admitted that the place of the incident was the Eastern corner of the field and this place of incident was not visible from the other parts of the field and that land cannot be ploughed or cultivated. He has, also, admitted that by the time he reached near Shiv Darshan Singh, he was not knowing about the incident and Shiv Darshan Singh had multiple injuries on his body. He has, also, admitted that by the time he reached near Shiv Darshan Singh, he was not knowing about the incident and Shiv Darshan Singh had multiple injuries on his body. He has, also, admitted that he is hard of hearing. He has, also, admitted that when he left the place of the incident for going to Sandarao in order to inform Yogendra Singh about the incident, his wife Smt. Ram Pyari, by that time, had not come at the place of the incident and while he was going towards Sanderao his wife Ram Pyari met him in the way and told her that he was going to arrange for a tractor and no other talk took place between them. He has, also, admitted that he enquired from Shiv Darshan Singh about the assailants and Shiv Darshan Singh gave the names of the accused and informed him that the accused crossed the tractor over his body and he must be taken immediately to the hospital. He further stated that at that time it was 5.30 p.m., later on, he corrected himself and said that it was 4.30 p.m. and stated that it was only on his aslung that Shiv Darshan Singh narrated the incident to him. He has, also, stated that Smt. Madan Kanwar did not inform him about the incident and only asked him to make an arrangement for a vehicle for taking the injured. Madan Kanwar disclosed the names of the assailants as Khima, Sadiya and Pooniya. He has, also, admitted that the police personnel came at the place of the incident in the night but no enquiry was made from him. From the statement of this witness, it is clear that this witness had actually not seen the incident. As per his own version, he came to the place of the incident after the incident was over and the accused had gone-away and he was informed by the deceased that he was given beatings by accused-appellants Khima, Sadiya and Pooniya and the accused, also, passed the tractor &ver the body of Shiv Darshan Singh. According to this witness, the incident took place at about 4.30 p.m. or 5.30 p.m. This part of the evidence of this witness is not supported by the medical evidence. According to this witness, the incident took place at about 4.30 p.m. or 5.30 p.m. This part of the evidence of this witness is not supported by the medical evidence. According to PW 13 Smt. Madan Kanwar, the deceased had taken his meals at about 1.00/1.30 p.m. and as per the medical evidence, undigested food was found in the stomach of deceased Shiv Darshan Singh. As the digestion process did not start, therefore, the incident must have taken place near about 2.00 p.m. and this witness had not even seen the occurrence and, also, did not come to the place of the incident immediately after the incident. This statement finds support only to the extent that he informed Yogendra Singh that Shiv Darshan Singh was given beatings. He did not disclose the names of any of the accused to Yogendra Singh. If he had the knowledge regarding the names of the accused and the incident then he would have certainly disclosed all these facts to Yogendra Singh. The family of this witness has been serving the family of the deceased for the last several generations. This witness has, also, stated that the deceased informed him that the tractor was crossed over his body by the accused but no crush injury was found on the deadbody. The evidence of this witness, therefore, does not inspire confidence. 9. Similar is the case with the statement of PW 11 Smt. Ram Pyari, who is the wife of PW 8 Kan Singh, who has admittedly not seen the occurrence and she came at the scene of the occurrence only after Kan Singh had gone away to inform Yogendra Singh regarding the incident. 10. PW 12 Yogendra Singh is not an eye witness. He was informed about the incident by PW 8 Kan Singh and after that he came to the place of the incident alongwith his wife, Kan Singh and Ganpat Singh and there he was informed by Smt. Madan Kanwar - the wife of the deceased - regarding the incident. 11. The prosecution case, therefore, mainly rests upon the testimony of PW 13 Smt. Madan Kanwar - the wife of deceased Shiv Darshan Singh. She has stated that on 14.9.88, at about 10.00 a.m., she alongwith her husband, children and Smt. Ram Pyari came to the field, situated near the well constructed by them, on a tractor. 11. The prosecution case, therefore, mainly rests upon the testimony of PW 13 Smt. Madan Kanwar - the wife of deceased Shiv Darshan Singh. She has stated that on 14.9.88, at about 10.00 a.m., she alongwith her husband, children and Smt. Ram Pyari came to the field, situated near the well constructed by them, on a tractor. They sat under a tree and she started cooking the food while Kanji's wife (Smt. Ram Pyari started cutting grass. At about 11.00 or 11.30 a.m., Kanji, also, came there and started cutting the grass. Thereafter they took the meals at about 1.00/2.00 p.m. One hour before taking the meals, Nimba Rebari came there, ploughed the field by a tractor for about an hour and thereafter he went away. Her husband took rest on a cot. She prepared the tea in the afternoon, called Kanji and his wife and all of them took the tea at about 4.00 p.m. Thereafter Shiv Darshan Singh started ploughing the field. At about 4.30 p.m., she saw four-five persons standing on a tractor and giving beating to her husband by lathis. She, therefore, called Kanji and by raising alarm, she proceeded towards the place of the incident and saw accused Pooniya Bhil, Sadiya Rebari, Raghuveer Singh, Labu Singh Sindal and Khima Bhil inflicting injuries to his person. One person was keeping himself hidden in the bushes. On seeing her, her husband asked her to go to the village alongwith the children otherwise they too would be killed by the accused. On seeing them, the accused sat on the tractor. Pooniya was driving the tractor. Raghuveer Singh asked them to pass the tractor over the body of Shiv Darshan Singh, upon which her husband was crushed by the tractor. Thereafter the accused went away on the tractor. The accused who was hiding himself in the bushes, also, disappeared. When she reached near her husband, by that time Kanji, also, came there. She enquired from her husband : who had inflicted injuries to him, upon which he replied that Raghuveer Singh engaged Khima, Labu Singh Sindal, Sadiya Rebari and Pooniya Bhil to give beatings to him. Thereafter she sent Kanji to the village for informing her brother-in-law and calling him. By that time, Kanji's wife, also, came there. She sent her to bring a tractor. Thereafter she brought the cot and placed her Jiusband on the cot. Thereafter she sent Kanji to the village for informing her brother-in-law and calling him. By that time, Kanji's wife, also, came there. She sent her to bring a tractor. Thereafter she brought the cot and placed her Jiusband on the cot. Her husband thereafter demanded water and she made the water Available to him. At about 7.00 p.m. her husband died. In the night, at about 9.00 p.m., Yogendra Singh, his wife and Kanji came at the place of the incident and she narrated the whole story to Yogendra Singh and informed him that Labhu Singh, Khima, Pooniya and Sadiya had given beatings to her husband on the asking of Raghuveer Singh. She has, also, stated that the relations between Shiv Darshan Singh and Raghuveer Singh were strained on account of partition of the property and Raghuveer Singb engaged these persons to kill her husband. She, also, stated, that two cases regarding giving beatings to her husonu are pending against Raghuveer Singh in the Court at Sumcrpur. In the cross-examination, when this witness was confronted with the fact that why this averment regarding a dispute with respect to partition of the ancestral property, taking the tea at 4.00 p.m., giving beatings by Raghuveer Singh the deceased passing over of the tractor on the body of Shiv Darshan Singh twice or thrice, disclosing the names of the accused to her by her husband, making the dying declaration before her and Kanji and disclosing the names of the accused to Kanji by the deceased, are not mentioned in her police statement, she told that she stated all these facts to the police but why the same have not been written in her police statement, she cannot say. She has, however, admitted that no partition of the ancestral property took place between the deceased and his brothers and Raghuveer Singh never made any objection for the use of the water from the well. She has, also admitted that there was no enmity of Shiv Darshan Singh with Khima, Pooniya and Sadiya. She has admitted that the incident took place when she was in the hut and from there neither the place of incident nor the place where Kana was cutting the grass, were visible nor Ram Pyari was visible from that place. She has, also admitted that there was no enmity of Shiv Darshan Singh with Khima, Pooniya and Sadiya. She has admitted that the incident took place when she was in the hut and from there neither the place of incident nor the place where Kana was cutting the grass, were visible nor Ram Pyari was visible from that place. She has stated in her cross-examination that they did not take the meals at 12.00 Noon but the meals were taken by them at about 1.00/1.30 p.m. She has, also, admitted that when she cried and called Kanji, by that time the accused went away on the tractor. She has, also, admitted that she did not tell the name of the accused to Ram Pyari and only told her that Kunwar Sahib had been given beatings and, therefore, she must bring a tractor. However, in the later part of the cross-examination she has stated that she told Ram Pyari the names of the accused who have beatings to her husband and the fact of making the dying declaration by her husband. In the cross- examination, she has admitted that she took-up her husband from the ground and placed him on the cot and in doing so, her clothes and hands were smeared with the blood. She has, however, admitted the fact that there is no mention of the fact of giving out the name of the accused by her husband in Ex.D. 5 and Ex.D. 6. The enquiry made by Kana from her husband and disclosing the names of the accused by her husband and disclosing the names of the accused by her husband to Kana, also, did not find mention in Ex.D. 5 and Ex.D. 6 and why it is so, she cannot say. She has, also, admitted that she did not narrate the incident to the police in the night. She has, also, stated in the cross- examination that repeated blows were given by the accused to her husband and the first blow was given when he was on the tractor and thereafter the beatings were given to him when he fell down on the ground. She has, also stated that the accused passed the tractor over the body of her husband and crushed him. She has, also stated that the accused passed the tractor over the body of her husband and crushed him. She has emphatically stated in the cross-examination that she herself had not seen the accused passing the tractor over the body of Shiv Darshan Singh.This witness has tried to make improvements from her earlier version recorded by the police in her police statements Ex.D. 5 and Ex.D. 6 recorded under Section 161 Cr.P.C. in order to fit-in her statement in the story which was later on developed by the prosecution. As per the statement of this witness, the deceased took the meals at about 1.00/1.30 p.m. As per the statement of PW 4 Dr. K.N. Mathur, undigested food was found in the stomach of the deceased, which means that the process of digestion had not started which started after half an hour. In this view of the matter, Shiv Darshan Singh died near about 2.00 p.m. while this witness has stated that the death of Shiv Darshna Singh took place at about 7.00 p.m. This witness has stated that the deceased was crushed by the accused under the wheels of the tractor but no crush injury was found on his dead body. If the tractor would have been crossed over the body of Shiv Darshan Singh twice or thrice as per her earlier statement, then looking to the weight of the tractor, there must have been some crush injuries damaging the ribs and other parts of the body whereon the tractor passed, must have been noticed by the doctor but the absence of the crush injuries on the dead body of Shiv Darshan Singh negatives the whole prosecution story put by this witness. It appears that this witness was, also, not present at the scene of the occurrence. If she would have seen the occurrence then there was no justification for her to make enquiry from her husband regarding the name(s) of the person(s) who had inflicted injuries to him. Had she seen the incident and the accused were known to her then there would have been no occasion for her to make such an enquiry from her husband. The medical evidence, thus, falsifies the prosecution case regarding the time and the manner of the incident. Had she seen the incident and the accused were known to her then there would have been no occasion for her to make such an enquiry from her husband. The medical evidence, thus, falsifies the prosecution case regarding the time and the manner of the incident. It appears that Shiv Darshan Singh met his death at about 1.30 or 2.00 p.m. and nobody had seen the perpetrators of the crime and somebody, on seeing the dead body, on account of inimical relations between the deceased and Raghuveer Singh, tried to fasten him in the crime. Even the statements of Kan Singh and Smt. Madan Kanwar are belied by their own statements. As per Kan Singh, the distance of the place of incident from village Sanderao can be covered within fifteen minutes on a tractor and in thirty-forty minutes by foot and he left the place of the incident at about 5.00 p.m. but passed the information to Yogendra Singh at the time of the Sun-set, which comes to about 7.00 p.m. Police Station, Sunderao is nearby the place of the incident-but still no report was lodged till the night of 13th September, 1988. Kan Singh, while informing Yogendra Singh, did not disclose him the names of the accused. The making of dying declaration by the deceased and knowing the names of the accused by this witness, thus, appear to be the false version and it is only on the suspicion that the accused have been falsely implicated in the crime. Neither any dying declaration was made by the deceased nor any of the witnesses had seen the accused. The learned Additional Sessions Judge was, therefore, not justified in placing reliance over the statements of these witnesses as well as on the dying declaration. 12. Then there remains only one circumstance, which has been relied upon by the learned Additional Sessions Judge, i.e., the recovery of the Lathi on the information and at the instance of accused Khima. The recovery of this Lathi was not made from any secret or unknown place. It was recovered from the field of Raghuveer Singh, which is a place open and accessible to all and sundry and that too after fifteen days of the arrest of the accused. The recovery of this Lathi was not made from any secret or unknown place. It was recovered from the field of Raghuveer Singh, which is a place open and accessible to all and sundry and that too after fifteen days of the arrest of the accused. The recovery of the Lathi after fifteen days of the arrest of the accused and that too from an open place accessible to all and sundry, also, raises a suspicion in the so- called recovery of the Lathi. 13. The learned Additional Sessions Judge lastly relied upon the strained relations between the deceased and accused Raghuveer Singh. Though the questions of enmity and motive have been disbelieved by the learned lower Court but the learned Additional Sessions Judge sought corroboration from this strained relation. This has come on record, in the evidence of the prosecution witnesses, that the relations between Raghuveer Singh and PW 12 Yogendra Singh are, also, strained and criminal litigations are, also, pending between them. It has, also, been admitted by Yogendra Singh that partition of the ancestral property has not yet taken place and there is a dispute between the brothers. The enmity is a double-edged weapon, it may give a cause to the accused to commit a crime and, also, gives a cause to the complainant party to falsely implicate the other person. The relations might be strained but it does not give any motive to accused Raghuveer Singh to commit the murder of Shiv Darshan Singh. The learned lower Court was, therefore, not justified in placing reliance over this part of the evidence, also. 14. The above discussion of evidence reveals that the prosecution has failed to prove the case against the accused-appellants beyond a reasonable manner of doubt and the appellants, therefore, deserve to be acquitted. 15. In the result, the appeal, filed by appellants, is allowed. The judgment dated 1.11.91, passed by the learned Additional Sessions Judge, Bali, convicting and sentencing the appellants, is set-aside and the appellants are acquitted of all the charges levelled against them. They are in jail. They may be released forthwith if they are not required in any other case. *******