JUDGMENT 1. These two appeals (one bearing No. 02/88 filed by Hari Singh and another, bearing No. 25/88 filed by Kitab Singh) arc directed against the judgment of learned Addl. Sessions Judge, Nohar dated 12-10-1987 whereby the learned Addl. Sessions Judge has held the accused appellants Hari Singh and Kitab Singh guilty of the offence under Section 302 read with 120-B IPC and 302 read with 34 IPC. Accused Bhagirath was held guilty of the offence under Section 302 read with 120-B IPC but he has expired. The appeal filed by him has, therefore, abated. 2. The facts necessary to be noticed for the disposal of this appeal briefly stated are that in the night intervening between 2nd and 3rd June, 1986 deceased Jaideo along with PW 1 Hari Singh, his uncle and PW 2 Dilip Singh were sleeping on the roof of the house of Mani Ram who happens to be father of the deceased Jaideo. It is alleged that Mani Ram was sleeping in guwadi. Be that as it may it has been alleged that at about 12 or 1.00 AM in the night when it rained and there was storm, they shifted to the 'Chobara' a room constructed on the roof. It is alleged that Hari Singh is real younger brother of Mani Ram. His house is just adjacent to the house of Mani Ram. He is a married person, but at that time his wife has gone to her father's house and, therefore, keeping in view the danger to the life of Jaideo, at the request of Mani Ram, these two persons were sleeping on the roof with Jaideo. 3. It is alleged that before about 2 or 21/2 years of this incident, two accused persons i.e. Bhagirath (now deceased) and Hari Singh accused tried to molest the sister of the complainant Hari Singh and Mani Ram named as 'Guddi' and, therefore, the case was registered against them for this offence. The accused persons lodged the cross FIR in which they alleged that they have been beaten by Mani Ram and Hari Singh etc. and have been confined in a house against their will. These two cross cases were pending in the Court of learned Munsif and Judicial Magistrate, Bhadra. 4. The accused persons lodged the cross FIR in which they alleged that they have been beaten by Mani Ram and Hari Singh etc. and have been confined in a house against their will. These two cross cases were pending in the Court of learned Munsif and Judicial Magistrate, Bhadra. 4. It is alleged that on account of that enmity which was nurtured by the accused party, they hatched a conspiracy that they will kill Mani Ram or his son. It is alleged that nothing was done for 2 and 2 1 /2 years, but before about 15 days of the occurrence, accused Hari Singh, Bhagirath and Kitab Singh (who happens to be the brother-in-law of accused Hari Singh elder brother Pat Ram) were found taking wine and at that time they were openly declaring that they will kill Mani Rani or his son. It is alleged that Bhagirath at that time told to his two other companions that he has already gone jail for 34 days, but why Hari Singh has not killed Mani Ram or his son. He again told them that he will again go to jail and, therefore, Hari Singh and Kitab Singh should kill Mani Ram or his son and he will take the blame on himself and, therefore, he will be acquitted being lodged in jail and others will be acquitted because he will take this blame on him for killing Mani Ram or his son. It is alleged that this conspiracy was hatched in a Johdi, which is a public place and that too an open public place of common use by villagers. Be that as it may PW 2 Dilip Singh who came to know about this conspiracy informed Mani Ram. Had Ram also came to know about it and it was because of this that these two persons were sleeping with Jaideo who was normally sleeping on the roof of his house to provide protection to him. 5. It is alleged that in the mid-night of 2nd or 3rd June, 1986 before sometime of the sunrise, these three persons were sleeping in the 'Chobara' of Mani Ram. Hari Singh and Dilip Singh woke up by hearing the noise of a gun-fire. 5. It is alleged that in the mid-night of 2nd or 3rd June, 1986 before sometime of the sunrise, these three persons were sleeping in the 'Chobara' of Mani Ram. Hari Singh and Dilip Singh woke up by hearing the noise of a gun-fire. As soon as they woke up, they saw that Bhagirath and Hari Singh both armed with pistols standing in the 'Chobara' and they have already hit Jaideo on his head who also cried 'Mardiya-Mardiya'. When these persons woke up they went away from the roof by descending through wooden stair case which was fixed by them on the other side of the wall of the house of Shri Hari Ram or Mani Ram. It is alleged that on hearing the noise of shot being fired, Mani Ram also came on the roof of his house along with a torch and in the torch light they saw the accused persons and thereafter on finding that Jaideo has already died, Mani Ram asked Hari Ram to lodge a report. The occurrence has taken place in village Gheu. Hari Ram then arranged for tractor and went to police station, Bhadra and there he lodged an oral report marked as Ex.P. 1. The report was lodged at 10.30 AM. The police station, Bhadra is situated at a distance of 15 miles from the place of occurrence i.e. village Gheu. On receiving this report, the police came to the place of occurrence and inspected the site and prepared a site plan marked as Ex.P. 2. The Panchnama of dead body was also prepared which has been marked as Ex.P. 3. One wad of the cartridge was also found there and has been recovered vide memo Ex.P. 4. Deceased cloths were also seized vide memo Ex.P. 5. Thereafter it is said that the statement of Dilip Singh and Mani Ram who have been examined in the Court as PW 2 and PW 3, were recorded by the Investigating Officer and in those statements it was disclosed that such a conspiracy was hatched by these three accused persons and actually it was accused Hari Singh and Kitab Singh who have come to kill Shri Jaideo whereas Bhagirath at that time lodged in Hissar Jail. He was there in Hissar Jail from 21st May, 1986 and was released from 04-06-1986. 6. The doctor also accompanied the police party. He was there in Hissar Jail from 21st May, 1986 and was released from 04-06-1986. 6. The doctor also accompanied the police party. He prepared the post-mortem report of the dead body of Jaideo which has been marked as Ex.P. 14. At the instance of Hari Ram, one pistol was recovered from the house of Bhagirath and recovery memo of pistol has been marked as Ex.P. 7 and place from where it was recovered has been shown in site plan Ex.P. 8. Photographs of the dead body and place of occurrence has been marked as Ex.P. 20 to Ex.P. 23. Arrest memo of accused Hari Singh has been marked as Ex.P. 24 and information memo about the recovery of pistol has been marked as Ex.P. 25. Arrest memo and search memo of accused Bhagirath and Kitab Singh were prepared on 25-06-1986 and 22-08-1988 respectively and have been marked as Ex.P. 26 and Ex.P. 27. The reports of the earlier incident have been marked as Ex.P. 28 and 29. After usual investigation the case against the accused- appellant was challaned in the Court of learned Munsif and Judicial Magistrate, Bhadra from where it was committed for trial to the Court of learned Additional Sessions Judge, Nohar. 7. The learned Sessions Judge after holding the trial convicted the accused persons as aforesaid and hence three separate appeals were filed by these three accused persons. Accused Kitab Singh filed a jail appeal which has been registered as Cr. Jail appeal No. 25/88; whereas represented appeal on his behalf and on behalf of accused Hari Singh has been registered as D.B. Cr. appeal No. 2/88. Appeal filed by accused Bhagirath has abated on account of his death. 8. We have heard Mr. M.L. Garg assisted by Mr. M.K. Garg for the appellants and Mr. V.R. Mehta, learned Public Prosecutor appearing for the State as; also Mr. Bhagwati Prasad assisted by Mr. Sanjeev Sharma for the complainant and have critically gone through the record of the case. 9. In this case there are two eye witnesses of the occurrence i.e. PW 1 Hari Singh and PW 2 Dilip Singh. Deceased Jaideo was not in a position to speak rather he died instantaneously and, therefore, his statement was not recorded. Sanjeev Sharma for the complainant and have critically gone through the record of the case. 9. In this case there are two eye witnesses of the occurrence i.e. PW 1 Hari Singh and PW 2 Dilip Singh. Deceased Jaideo was not in a position to speak rather he died instantaneously and, therefore, his statement was not recorded. PW 1 Hari Singh is the person who has lodged the report in the police station which has been marked as Ex.P. 1 and it has been proved by him. In that report he categorically stated that it was accused Bhagirath and Hari Singh who came on the roof of Mani Ram's house and then entered into Chobara and have killed Jaideo by firing from their pistols. It is not known who fired his pistol, which has hit the deceased because these two eye witnesses were sleeping when the shot was actually fired. They only woke up when heard the noise of pistol fire. But, it has been categorically stated by Hari Singh that he saw accused Bhagirath and Hari Singh inside the Chobara, who were previously well known to him, from a distance of 2-3ft. and as soon as he and Dilip Singh PW 2 saw them the accused persons escaped from the place of occurrence through the wooden stair case which they later on threw at the house of Uda Ram who has not been examined. It is alleged that thereafter Bhagirath again fired a shot from his pistol from the lane. Now this version which has been given in the FIR by Hari Singh, has been abandoned by him and instead of Bhagirath he has substituted Kitab Singh as the person who accompanied accused Hari Singh to the roof of the house of Sh. Mani Ram and for his participation in killing deceased Jaideo. He has further stated that it was a dark night and so Bhagirath being similar in features and face with Kitab Singh, he mistook Kitab Singh for Bhagirath. Later on he has admitted in the cross-examination that features of Kitab Singh and Bhagirath are not similar, but because of darkness, he thought that he must be Bhagirath rather than Kitab Singh. So now as per Hari Singh it was a case of mistaken identity. Later on he has admitted in the cross-examination that features of Kitab Singh and Bhagirath are not similar, but because of darkness, he thought that he must be Bhagirath rather than Kitab Singh. So now as per Hari Singh it was a case of mistaken identity. PW 2 Dilip Singh has stated that it was Kitab Singh and Hari Singh who have come on the roof of Mani Ram. They were armed with pistols and one of them, by firing from his pistol, has killed Jaideo. PW 3 Mani Ram has specifically stated that on hearing the noise of pistol fire, he came on the roof of his house. He was carrying a torch with him and in the torch light he and Dilip Singh PW 2 saw that Hari Singh has already alighted from wooden stairs and Kitab Singh was in process of getting down through those wooden stairs. They have further stated that Kitab Singh has again fired from his pistol from the lane. They returned to the Chobara but they had no talk whatsoever with Hari Singh about the identity of assailants. Rather Mani Ran has stated that he told Hari Singh to go to police station to lodge its report. PW 3 Mani Ram state that he inquired from Hari Singh as to who has fired the shot, whereupon Hari Singh told him that two persons are going and he may see them for himself. He did not name the accused persons whom he has already identified and it was because of this that it is alleged that Mani Ram and Dilip Singh went to the place from where the accused persons were descending from stairs to make good their escape. 10. At about 8 or 8.30 AM Hari Singh left his house for lodging the report at the Police Station, Bhadra. The occurrence took place in the month of June before either half or one or one & half hour of the sun-rise. The assailants were identified; firstly by Hari Singh without a torch light and then Mani Ram and Dilip Singh with the help of a torch light identified them. It is not known what they were doing in the village for all these 3 to 31/2 hours. The assailants were identified; firstly by Hari Singh without a torch light and then Mani Ram and Dilip Singh with the help of a torch light identified them. It is not known what they were doing in the village for all these 3 to 31/2 hours. In this period of 3 to 31/2 hours the learned counsel of the appellants has submitted that they must have consulted or talked with each other to decide as to who has killed Jaideo as they did not know who are the assailants and, therefore, these, three hours were utilised by them to deliberate as to on whom the burden of this murder should be placed. They had long standing enmity with Hari Singh and Bhagirath and, therefore, they decided; to lodged this report against these two persons only on the basis of their enmity. If the accused persons were known to them, there was no reason for them to remain in the village for such a long time. Unfortunately on the date of occurrence Bhagirath was in jail and, therefore, they had no option but to change their version that Bhagirath's name was recorded in the FIR as a case of mistaken identity and actually it was accused Kitab Singh who accompanied Hari Singh. In his statements Hari Singh has nowhere stated that there was not much light and the accused persons were not identifiable in that light. Rather he has categorically stated that he identified them and, therefore, that much of light was available for identifying the accused persons. In order to strengthen the case of mistaken identity, an effect has been made to prep one the time of occurrence from about the time as mentioned in the FIR or one & half hour before sun-rise. Nobody will come to the house of somebody else to kill a person at the time of sun-rise. In order to strengthen the case of mistaken identity, an effect has been made to prep one the time of occurrence from about the time as mentioned in the FIR or one & half hour before sun-rise. Nobody will come to the house of somebody else to kill a person at the time of sun-rise. It appears that the occurrence has taken lace in the mid-night but to establish identification firstly time of sunrise was mentioned in the FIR and when the necessity for establishing a case of mistaken identity arose, the time was shifted back by an hour or hour and a half so that element of darkness may be brought in to establish a case of mistaken identity and it was because of this that torch factor which was not mentioned in the FIR was later introduced in the statement of Mani Ram. In the FIR that has been got recorded at the instance of an eye witness, it is nowhere mentioned that Mani Ram came with torch and thereafter these two accused persons were identified by Mani Ram and Dilip Singh with the help of torch and, therefore, the story about torch being there with Mani Ram is an after thought story. It has been developed later on to cover-up the case of the mistaken identity. 11. It was specifically asked to the learned Public Prosecutor and Mr. Bhagwati Prasad, appearing for the complainant that when Hari Singh has stated that he did not leave the dead body lying in the chobara and second shot was fired either by Bhagirath or Kitab Singh from the lane was seen only by Mani Ram and Dilip Singh and they did not inform Hari Singh as to who had fired the second shot from the lane, how Hari Singh got it recorded in Ex.P. 1 FIR that second shot was fired by Bhagirath from the lane. It has been stated by PW 2 Dilip Singh and PW 3 Mani Ram that after identifying the accused persons and after seeing that Kitab Singh has fired the second shot, they did come to Chobara where Hari Singh was there, but still they did not inform Hari Singh as to who were the accused persons and who has fired the second shot. Hari Singh went for lodging the report to the Police after about 2 or 31/2 hours of the occurrence and still nothing was discussed between him and Dilip Singh and Mani Ram that is as to who were the real assailants whom they have identified? This strange conduct of the witnesses lends support to the contention of Mr. M.K. Garg, counsel for appellants that it is a case in which Jaideo has been killed by gun fire but nobody saw the occurrence. If they have identified one of the assailants as Bhagirath who was already in jail before ten days of this occurrence then where lies the guarantee that they have correctly identified Hari Singh. In this respect reliance has been placed on AIR 1990 SC 1709 , State of U.P. v. Mott Ram The contention of the S.H.O. that Uda Ram, a person of the lane told him that when they woke up in the morning it was talked in the village that somebody has killed Jaideo. If the accused persons were identified and their names were disclosed to number of persons in village as stated by PW 3 Mani Ram, there was no question of such a talk going on in the village that somebody has killed Jaideo. If the statements of PW 1 Hari Singh, PW 2 Dilip Singh and PW 3 Mani Ram are correct that they identified the accused persons and informed about it to the villagers, then there is no question of there being a talk in the village that somebody has killed Jaideo. Hari Singh was in the village for about 2 to 31/2 hours before lodging the report and if the accused persons were identified by Mani Ram and Dilip Singh, there was no question of naming Bhagirath in the FIR by Hari Singh PW 1. A man may speak lies but circumstances do not. Thus in our view the evidence about identification of accused persons is totally suspicious and unbelievable. 12. It may be stated here that entire evidence about conspiracy is an after thought story that it was hatched before 15 days and on account of that; conspiracy some precautions were taken and as a result thereof Mani Ram requested Hari Singh and Dilip Singh to sleep along with Jaideo appears to be unbelievable. 12. It may be stated here that entire evidence about conspiracy is an after thought story that it was hatched before 15 days and on account of that; conspiracy some precautions were taken and as a result thereof Mani Ram requested Hari Singh and Dilip Singh to sleep along with Jaideo appears to be unbelievable. The very absence of this fact in the FIR clearly shows this evidence about conspiracy was also cooked up later on to substitute Kitab Singh for Bhagirath because Bhagirath was in jail and to rope in Bhagirath for the commission of this crime, this story of conspiracy was invented. A conspiracy for such a heinous crime as murder is not usually hatched in a public place like Johadi and that too so loudly. That circumstance by itself is sufficient to discredit the evidence as regards hatching of conspiracy. There are number of other discrepancies in the prosecution evidence. It has been stated that FIR is a post dated document. Hari Singh has stated; that he reached the police station at 5 PM and there his signatures were obtained at 2 places in the register which must be FIR register. The FIR was sent to the Magistrate on the next day; although the Court and house of the learned Magistrate are situated at a distance of 2 furlongs; from the police station, but we are not much concerned about all these facts because we are firmly of the view that it is a case where the evidence of the eye witnesses cannot be relied on about the identity of the accused persons and about the hatching of conspiracy. If the complainant Hari Singh can identify Bhagirath, who was in jail for past 10 days as companion of accused Hari Singh then there is not guarantee that they have correctly identified Hari Singh also. It is very strange that none of these persons after the incident and inspite of identifying the accused persons did not shout that these are the assailants of Jaideo who are trying to run away from the place of occurrence, which is most unbelievable and against human conduct, specially when one those assailants has fired the second shot from the lane. It is also unbelievable that Hari Singh will remain in village for 3 to 31/2 hours after such a ghastly murder if the names of accused persons are correctly known to the complainant party and still Hari Singh PW 1 will get the name of Bhagirath recorded as assailant of Jaideo in the FIR Ex.P. 1. A tractor was available; at the house of Mani Ram because he is owner of that tractor. Young son of Mani Ram has been killed and the accused persons have been identified and therefore, there was no reason for Hari Singh who was asked by Mani Ram to immediately lodge the report, to wait for 3 hours to got to the police station to lodge the report. This waiting of three hours shows that some conference or discussion did take place to decide on whom the burden of this murder be placed, otherwise there was no reason to wait for three hours. The story of search of a means of transport is also a cooked up story as tractor was already available with Mani Ram. 13. Keeping in view all these facts and circumstances of the case, we are constrained to observe that learned Sessions Judge was not right in placing implicit reliance on the testimony of these witnesses who had inimical relations with these accused persons and are having no regard for truth. We are, therefore, convinced that the prosecution has not been able to bring home the guilt to the accused persons beyond all manner of doubt between a fact which may be true and which must be true a long distance has to be travelled and that too has to be travelled by the prosecution by leading clear, cogent and reliable evidence, which is lacking in this case and, therefore, the accused persons deserve benefit of doubt and consequent acquittal. 14. In the result, the appeals succeed. The conviction and sentence of accused-appellants Hari Singh and Kitab Singh recorded under Section 302 read with 120-B IPC and 302 read with 34 IPC are set aside and they are acquitted of the aforesaid offences. Appellant Hari Singh be released from custody forthwith, if he is not required in any other case. So far as appellant Kitab Singh is concerned, he is already on bail and, therefore, he need not surrender to his bail bonds. Appellant Hari Singh be released from custody forthwith, if he is not required in any other case. So far as appellant Kitab Singh is concerned, he is already on bail and, therefore, he need not surrender to his bail bonds. The appeals stand disposed of accordingly.Appeal allowed/Conviction and sentence set aside. *******