JUDGMENT 1. - These three appeals are directed against the judgment passed by the learned Additional Sessions Judge No. 3, Jodhpur in sessions case no. 43/89 whereby he has convicted the accused-appellants Ahmed Hussain @ Bhuria and Salimudden under section 302 IPC and also convicted Abdul Hamid under section 302 read with Section 34 IPC. The learned Additional Sessions Judge No. 3, Jodhpur sentenced each of the accused-appellants to life imprisonment with a fine of Rs. 1000/- and in default of payment of fine to further undergo six months S.l. 2. Briefly stated the facts of the case are that a written report (Ex.P/7) was submitted by one Kana Ram (PW. 5) at police station, Sardarpura, Jodhpur on 18.2.1989 at 5.55 p.m. alleging that at 4.30 p.m. Rajesh Kala came to the hotel and after eating food, while he was taking `papar', Bhuria @ Ahmed Hussain, Hamid and Salimudeen came in a drunken state and asked for food. Thereafter, they asked name and address from Rajesh and also asked Rajesh to move outside. It was alleged that after some altercation, when they moved outside, Salimudeen and Bhuria took out a knife. It was also alleged that at that time Rajesh ran towards Sardarpura 4th Road and he was followed by all the three accused persons. Later on he heard that those three persons killed Rajesh by inflicting knife blows at the slope of 4th Road at 5 p.m. 3. On receiving the report, the S.H.O. Sardarpura, Jodhpur started investigation after registering the case. During the course of investigation, necessary exhibits like site inspection memo, Panchnama etc. were prepared vide Ex. P-1, P-2, P-3 and P-4 and the clothes which were worn by the deceased were also seized. The dead body was sent for post-mortem report examination, report of which is marked as Ex.P/17. The accused-appellants viz. Bhuria @ Ahmed Hussain, Salimudeen and Abdul Hamid were arrested on 19.2.1989 vide Ex.P/21, P/22 and P/23 respectively. Thereafter, at the instance of the accused Abdul Hamid one blood stained shirt was recovered vide Ex.P/24. At the instance of the accused Bhuria @ Ahmed Hussain blood stained knife and blood stained shirt was recovered vide Ex.P/26 and vide Ex.P/29 blood stained knife and a shirt was recovered at the instance of the accused Salimudeen. Thereafter, at the instance of the accused Abdul Hamid one blood stained shirt was recovered vide Ex.P/24. At the instance of the accused Bhuria @ Ahmed Hussain blood stained knife and blood stained shirt was recovered vide Ex.P/26 and vide Ex.P/29 blood stained knife and a shirt was recovered at the instance of the accused Salimudeen. After usual investigation, challan under Section 3 02 read with Section 34 IPC was filed against the accused persons and the case was ultimately committed to the court of Additional Sessions Judge No. 3, Jodhpur. 4. The learned trial court framed charges against the accused-appellants to which they pleaded not guilty and claimed trial. The prosecution in support of its case produced 16 witnesses whereas the accused appellants did not produce any witness in defence. The learned Additional Sessions Judge, after conclusion of the trial court convicted and sentenced the accused-appellants as mentioned above. Being aggrieved with their convictions and sentences, the accused-appellants have come in appeals. 5. The learned counsel for the appellants have assailed the conviction of the accused-appellants on the ground that the evidence of the sole eye-witness RW.13 Kishanlal is not reliable as he was not present at the place of occurrence and prayed that the judgment of the learned trial court may be set aside. 6. On the other hand learned Public Prosecutor has supported the judgment of the learned trial Court and submitted that the accused-appellants have been rightly convicted & sentenced. 7. We have heard learned counsel appearing for the appellants and the learned Public Prosecutor. We have also gone through the case file carefully. 8. It is no doubt true that conviction can be based on the sole testimony of solitary eye-witness but evidence of such sole witness on whose statement the conviction is based must be of sterling worth. 9. To examine whether the testimony of sole eye-witness is credible or not, it will be necessary to read the evidence of the sole eye-witness and the evidence of other witnesses produced by the prosecution as also the medical evidence. 10. PW. 12 Dr. M.P. Joshi had conducted the post mortem of the deceased Rajesh Kalal and found as much as 11 injuries on the dead body of the deceased. In the post- mortem report (Ex.P/17), the Doctor has opined that the cause of death is `shock hemorrhage' due to injuries. 11. PW. 10. PW. 12 Dr. M.P. Joshi had conducted the post mortem of the deceased Rajesh Kalal and found as much as 11 injuries on the dead body of the deceased. In the post- mortem report (Ex.P/17), the Doctor has opined that the cause of death is `shock hemorrhage' due to injuries. 11. PW. 13 Kishanlal who is the sole eye-witness of the incident has stated that on the date of incident he alongwith Rajesh went to Kohinoor (Auditorium) to watch a movie in the evening show commencing at 6 O clock. He has stated that Rajesh went to take food at `A-One Dal Bati' and after five minutes Bhuria, Salimudeen and Abdul Hamid went inside the hotel. He has also stated that thereafter he saw that Rajesh was running towards 4th Road and he was followed by Bhuria, Salimudeen and Hamid who were having knives in their hand. PW. 13 has stated that he also followed them on cycle and when the reached at 4th Road, he saw that all the three accused have surrounded Rajesh, Hamid caught hold of Rajesh and the other two accused inflicted knife blows on the chest of Rajesh. He has further stated that Salimudeen inflicted knife blow in the back of the deceased. PW. 13 has stated that he informed the matter to the police and after visiting home came back with Shankerlal. He has stated in his cross-examination that when he reached at the place of occurrence, the accused persons after killing Rajesh were fleeing In his cross-examination he has specifically stated that his statements were taken on the second day of the occurrence and that he narrated the names of the assailants to the father of the deceased and his other relates. 12. PW. 1 Roshanlal Maheshwari has stated that his house is situated at the corner of 4th Chopasni Road and at the relevant time he was sitting with his clients Shyamji and Kuldeep Singh whose faces were towards the road whereas his face was towards his house. He has stated that at about 5-5.30 in the evening, one person came running from the side of Kohinoor Cinema and on the road infront of his house, he was stabbed by one boy out of 2-3 boys who were also chasing him. On account of that the injured had fallen down and started bleeding. He has stated that at about 5-5.30 in the evening, one person came running from the side of Kohinoor Cinema and on the road infront of his house, he was stabbed by one boy out of 2-3 boys who were also chasing him. On account of that the injured had fallen down and started bleeding. He has also stated that after some time he asked one person who was passing through, to report the matter to the police. He has further stated that he did not see the person who came running and the person who had inflicted knife blows because his face was towards his house and Shyamji who was sitting near him gave information about these persons. In his cross-examination he has stated that after 4-5 minutes of the incident one cycle-wala came there to whom he asked to report the matter to the police. 13. We proceed to consider the evidence of the solitary eye-witness RW. 13 Kishanlal in the light of the other evidence available on record. 14. According to the eye-witness RW. 13 after the incident took place he informed the police at the gate of police-station about the murder of Raju and the names of the assailants and weapon used by them. In `Rojnamcha' Ex.P/19 it has been stated that one person came on cycle and at the gate of police station informed that at 4th Road one person has been murdered with knives, who is lying there. It is also mentioned that the name & address of that person was asked but without informing the same he went away. If this part of the statement of P.W. 13 Kishanlal is accepted then in Ex.P/19 the names of the accused must find place along with his own name as informant but in Ex.P/19 `Rojnamcha' neither his name nor the names of the accused have been mentioned. P.W. 1 Roshanlal Maheshwari has stated that after the incident took place, one person who was passing through was asked to report the matter to the police but this witness has not shown the presence of R W. 13 Kishanlal as a person who was witnessing the incident. That apart in the written report which is alleged to have been submitted by RW. That apart in the written report which is alleged to have been submitted by RW. 5 Kanaram, produced by the prosecution as Ex.P/7 and on the basis of which the F.I.R. was chalked out, also the name of the eye-witness P.W. 13 Kishanlal is not mentioned rather P.W. 5 who was allegedly working in `A-One Dal Bati' has stated that the police authorities took him at the place of occurrence and took his signatures on blank papers. RW. 5 was ultimately declared hostile. In the exhibits which were prepared by the police at the time of investigation, RW. 13 Kishanlal has not been shown as an eye-witness. One more important aspect which could substantiate the version of sole eye-witness, was production of Shyamji and Kuldeep Singh as witnesses as according to RW. 1 Roshanlal Maheshwari these persons were sitting near him and their face was towards road where the occurrence is alleged to have taken place but neither Shyamji nor Kuldeep Singh was produced by the prosecution in support of its case. For non-production of these persons as witnesses, no explanation has been furnished by the prosecution. In the cross-examination PW. 16 Ramnath, I.O. has admitted that though according to RW. 1 Roshanlal Maheshwari, Shyamji was a eye-witness but he did not make any investigation in this regard. This circumstances coupled with the other circumstances indicated above, are material and fatal to the prosecution.Considering the testimony of eye-witness RW. 13 independently on its face we find several discrepancies which are on material points. RW. 13 Kishanlal in his statement at one place has stated that distance between him and the accused was 40 ft. and at the other place he has stated that at the time when the accused were killing Rajesh he was at a distance of about 60 ft. Apart from that according to this sole eye-witness his statement was recorded by the police on the second day whereas on Ex. D/1 whereby the evidence of Kishanlal was recorded by the police under section 161 Cr.P.C., the date mentioned is 18.2.1989, the date of occurrence. RW. 13 Kishanlal in his cross- examination has stated that he narrated the names of assailants to the father of the deceased and his relatives on the date of incident whereas the father did not name the accused before the police even when he reached at the place of occurrence. RW. 13 Kishanlal in his cross- examination has stated that he narrated the names of assailants to the father of the deceased and his relatives on the date of incident whereas the father did not name the accused before the police even when he reached at the place of occurrence. Moreso, in his statement, Kishanlal has not said anything about any efforts made by him for getting the deceased treated. What he has stated is that Hamid caught hold of Rajesh and the other two accused inflicted knife blows on the chest of the deceased and Salimudeen inflicted knife blow in the back of the deceased and thereafter he went to police station to inform the matter to the police. This behaviour of the eye-witness in such a situation does not seem to be natural as a person whose companion has suffered such injuries, would first of all make efforts for getting him treated but in the case in hand this witness did nothing in this regard and even did not go near the deceased to see whether his friend was alive or not and straightway went to police station to report the matter. In view of the above circumstances, it is clear that none of the other witnesses has shown the presence of the alleged sole eye-witness at the place of occurrence nor any document including the written report on the basis of which F.I.R. was drawn refers to the name of the sole eye-witness RW. 13 Kishanlal, which creates doubt about the presence of RW. 13 Kishanlal at the place of occurrence particularly when there are several material discrepancies in his statement. It may be stated that the person witnessing crime but not giving required information, the evidence of such witness should be scanned with much care and caution as it is unsafe to convict on his sole testimony unless he is corroborated by the other material produced by the prosecution. Therefore, we are of the view that the presence of the eye-witness RW. 13 Kishanlal at the place of occurrence becomes doubtful and creates suspicion as no other witness has supported his version nor there is any other circumstance establishing him to be a truthful witness of sterling worth. 15. Now, we proceed to examine the medical evidence as to whether it corroborates the prosecution story or not. According to RW. 13 Kishanlal at the place of occurrence becomes doubtful and creates suspicion as no other witness has supported his version nor there is any other circumstance establishing him to be a truthful witness of sterling worth. 15. Now, we proceed to examine the medical evidence as to whether it corroborates the prosecution story or not. According to RW. 13 Kishanlal, Rajesh took meeil at `A-One Dal Bati' at about 4.30 p.m. and while he was taking `papar', the accused-appellants came there and after some time Rajesh was murdered. Whereas as per post-mortem report, semi-digested food was present in the stomach. If the version of RW. 13 is taken to be true then how semi- digested food was present in the stomach of the deceased soon after his taking meal as in the natural course it can take about three hours to digest the food. As per the prosecution case there is no gap between taking of the meals and the incident and in such a situation semi- digested could not be found particularly when the prosecution has not explained as to whether the deceased earlier to taking of meals at 'A-One Dal Bati' also had eaten something or not. Therefore, it creates doubt about the veracity of the testimony of the eye-witness and demolish the prosecution version that soon after the deceased took meals and was eating `Papar', the accused- appellants picked up quarrel and ultimately at 4th Road killed the deceased. One more point which abruptly invites attention is that as per the post-mortem report, the deceased received as much as 11 injuries. Out of these injuries, injury no. 4 is bruise and the injuries no. 5, 6, 7, 8, 10 and 11 are abrasions. As per the statement of eye-witness RW. 13 Kishanlal the accused Abdul Hamid caught hold of the deceased Rajesh and the other two accused inflicted knife blow. Nothing has been said by RW. 13 with regard to any sort of falling or dragging of the deceased by the accused-appellants due to which he could have sustained these injuries. It is well settled that there should not be a conflict between medical evidence and prosecution but in this case as stated above the medical evidence does not in any way corroborate the prosecution. These discrepancies are material and create serious doubt on the prosecution story as the persons/witnesses may lie but the circumstances/documents will not. It is well settled that there should not be a conflict between medical evidence and prosecution but in this case as stated above the medical evidence does not in any way corroborate the prosecution. These discrepancies are material and create serious doubt on the prosecution story as the persons/witnesses may lie but the circumstances/documents will not. 16. As already stated when the solitary testimony of the eye-witness RW. 13 Kishanlal has no bearing, we examine the other circumstances. The prosecution has not been able to point out any motive or previous enmity between the accused-appellants. Though the prosecution has placed reliance on the recovery of weapon used in the commission of the offence at the instance of the accused-appellants. P.W. 16 Ramnath, S.H.O. in his statements has stated that at the instance of the accused Bhuria a blood stained knife was recovered from his house along with blood stained clothes. He has also stated that at the instance of the accused Salimudeen a blood stained knife of 12 inches was recovered from his dwelling house. On the contrary RW. 3 Jogeshwar and RW. 4 Bastiram are the motbirs of the recovery of knives from the accused-appellants which was made vide Ex. P/5 and Ex. P/6, have stated that in their presence from each of the accused Bhuria and Salimudeen a knife was recovered by the police at Police Station. These witnesses do not support the prosecution, so far as recovery of weapon used in commission of the offence but despite that they have not been declared hostile by the prosecution. Therefore, this part of the prosecution story is also not credible. That apart the prosecution has not got the blood group of the accused-appellants examined, therefore, the prosecution cannot take advantage of alleged recovery of blood stained articles which creates doubt in connecting the accused appellants with the commission of offence. 17. Therefore, this part of the prosecution story is also not credible. That apart the prosecution has not got the blood group of the accused-appellants examined, therefore, the prosecution cannot take advantage of alleged recovery of blood stained articles which creates doubt in connecting the accused appellants with the commission of offence. 17. In view of what we have discussed above, the testimony of eye witness P.W. 13 Kishanlal does not inspire confidence and creates suspicion on the prosecution story, there is a long distance between `may be true' and `must be true' and the prosecution has to travel all the way to prove its case beyond all reasonable doubt but miserably failed to bring home the guilt of the accused-appellants so as to prove beyond all realms of doubt that the accused-appellants and only they committed the offence.In the result, we allow these appeals and set aside the convictions and acquit the accused-appellants. The judgment dated 3.3.1992 of the learned Additional Sessions Judge No. 3, Jodhpur convicting the accused-appellants and sentencing them to the life imprisonment along with a fine of Rs. 1000/- each is set aside. The accused-appellants viz. Abdul Hamid, Ahmed Hussain @ Bhuria and Salimudeen are in jail and they be released forthwith if not required in any other case. *******