JUDGMENT 1. - This appeal is directed against the judgment, dated 10.1.1994, passed by learned Sessions Judge, Jhalawar whereby the accused- appellants have been convicted for the offence under Section 302 read with Section 34 Indian Penal Code and sentenced each of them to undergo life imprisonment and pay fine of Rs. 2,000/- each, in default of payment of fine, further undergo one year's rigorous imprisonment. 2. The brief facts giving rise to this appeal are that on 11.9.1992 a written report Ex. P. 11 has been given in Police Station, Bhawani Mandi by one Pritam Singh son of Gopal alleging therein that after attending the SDM Court, while he was going back to his house and reached at the shop of Bheru Singh, he saw his cousin Foza Singh was starting his motor cycle and all of a sudden Deep Chand his son Hukan Chand, his brother Daulat Ram and Ganesh son of Daulat Ram armed with sword and daggers attacked on Foza Singh. Deep Chand has given sword blow to Foza Singh at head. Foza Singh fell down from the motor cycle. Then Hukam Chand, Daulat Ram and Ganesh have also given dagger blows. To save himself, Foza Singh entered in the Shop of Bheru Singh and closed the shutters and bolted from inside. These accused-appellants chased him and broke open the doors and again gave beating to him and killed him. At the time of incident, Bheru Singh, Shiv Raj Singh, Madan Singh, Kalu Singh and Mukand Singh were present. On the basis of this report, F.I.R. Ex. P 12 has been chalked out. The case has been registered under Section 302 Indian Penal Code. 3. During investigation, inquest report Ex. P-1 and site plan Ex. P-2 were prepared. Blood smeared soil and stones and control soil and stones taken, they are Ex. P-3 and Ex. P-4 respectively. Post mortem was got conducted. The post mortem report in Ex. P-23. One Takia, Chaddar and motor cycle have also been recovered, is Ex. P-7, Ex. P-8 and Ex. P 9 respectively. Accused appellants were arrested. The arrest memos are Ex. P-15 to Ex. P-18. At the instance of Hukam Chand, one dagger has been recovered, recovery memo is Ex. P-20; at the instance of Daulat Ram, one dagger has been recovered, recovery memo is Ex. P-7, Ex. P-8 and Ex. P 9 respectively. Accused appellants were arrested. The arrest memos are Ex. P-15 to Ex. P-18. At the instance of Hukam Chand, one dagger has been recovered, recovery memo is Ex. P-20; at the instance of Daulat Ram, one dagger has been recovered, recovery memo is Ex. P-21; at the instance of Ganesh, one dagger has been recovered, recovery memo is Ex. P-22; and, at the instance of Deep Chand, one sword has been recovered, recovery memo is Ex. P-29. After investigation, challan has been filed and charges have been framed. The accused denied the charges and claimed for trial. During trial, as many as 17 witnesses have been examined by the prosecution. The statements of accused-appellants have been recorded under Section 313 Criminal Procedure Code Considering the material on record, the Trial Court came to the conclusion accused-appellants have committed the offence under Section 302 read with Section 34 ]PC and convicted and sentenced as afore- said. 4. Being aggrieved with the judgment of Trial Court the accused-appellants have preferred this appeal. 5. Heard learned counsel for the accused-appellants and learned Public Prosecutor for the State. 6. A written report Ex. P 11 has been given by P.W. 3 Pritam Singh in Police Station, Bhawani Mandi at 5.45 p.m. on 11.9.1992 alleging therein Deep Chand, Daulat Ram, Hukan Chand and Ganesh have committed the murder of Foza Singh. Postmortem was got conducted and during post mortem, more than 28 injuries were found on the person of deceased and in the opinion of Doctor, the cause of death of deceased Foza Singh was extensive hemorrhage and shock due to multiple injuries on his body. All injuries were ante mortem in nature. This does not leave any doubt on the fact, it is a case of homicide and not a natural death, but the question remains whether the accused-appellants have committed the murder of Foza Singh on 11.9.1992. 7. The prosecution has examined as many as 17 witnesses. Out of them it is claimed that P.W. 3 Pritam Singh, P.W. 4 Madan Singh, P.W. 6 Mukund Singh, P.W. 7 Shiv Raj 1996(1) Daulat Ram & Ors. 7. The prosecution has examined as many as 17 witnesses. Out of them it is claimed that P.W. 3 Pritam Singh, P.W. 4 Madan Singh, P.W. 6 Mukund Singh, P.W. 7 Shiv Raj 1996(1) Daulat Ram & Ors. v. State of Rajasthan (H.C.) Singh, P.W. 8 Kalu Singh and P.W. 9 Bheru Singh have witnessed the scene and it is also brought on record one sword has been recovered at the instance of accused Deep Chand and three daggers have been recovered at the instance of accused Daulat Ram, Ganesh and Hukam Chand. 8. Mr. Naqvi, learned counsel for the appellants has first submitted the incident took place on 11.9.1992 in the open market and there was gathering of persons more than 100. No independent witness has been examined as eye witness. Only interested witnesses have been introduced. Therefore, no reliance can be placed on their testimony. P.W. 3 Pritam Singh and P.W. 6 Mukand Singh are relations of deceased Foza Singh, P.W. 4 Madan Singh. P.W. 7 Shiv Raj Singh, P.W. 8 Kalu Singh and P.W. 9 Bheru Singh are from a particular community and have political rivalry with accused Deep Chand. 9. It is true that they are interested witnesses, but their testimony cannot be thrown out only on the ground that they are partisan witnesses. The only requirement in such cases is the testimony be scrutinised with more care and caution. 10. P.W. 4 Madan Singh, P.W. 6 Mukand Singh, P.W. 7 Shiv Raj Singh, P.W. 8 Kalu Singh and P.W. 9 Bheru Singh are consistent on the fact while there was political discussion among these witnesses and Deep Chand, they exchanged some hot words and on Foza Singh deceased sent Deep Chand to his home. He became angry with Foza Singh and threatened him that he will see him, and after 10-15 minutes, he came back along with his brother Daulat Ram and accused-appellants Ganesh and Hukam Chand armed with sword and daggers and Deep Chand gave sword blow while Foza Singh was sitting on the motor cycle and about to start motor cycle. He fell down from the motor cycle. Then accused appellants Daulat Ram, Hukam Chand and Ganesh gave dagger blows to deceased Foza Singh. Foza Singh got up in order to save his life and entered in the shop of Bheru Singh and bolted the shutter from inside. He fell down from the motor cycle. Then accused appellants Daulat Ram, Hukam Chand and Ganesh gave dagger blows to deceased Foza Singh. Foza Singh got up in order to save his life and entered in the shop of Bheru Singh and bolted the shutter from inside. They chased him, broke open the door and gave further beatings. Further beatings were given at place A-2 and B. No blood was found at place A where Foza Singh was sitting on the motor cycle and first time the sword blow was given at his head from the back side. 11. The version of the so called eye witnesses does not found corroboration from the medical report. P.W. 3 Pritarn Singh, P.W. 4 Madan Singh and P.W. 6 Mukand Singh have stated while Foza Singh was sitting on the motor cycle and about to start, these assailants came from behind and Deep Chand gave sword blow on the back side of head, but no such injury on the back side of the head was found during postmortem. During examination, P.W. 13 Dr. Srinath Gupta has admitted at the time of post mortem, he inspected the injuries and only two injuries were found on the left side of parietal region but no injury was found on the back of head of deceased Foza Singh. 12. The perusal of site plan Ex. P-2 reveals Deep Chand inflicted sword blow first time at place 'A'. Consequently, Foza Singh fell down from the motor cycle and then accused appellants Daulat Ram, Hukam Chand and Ganesh gave dagger blows. He got up and entered in the shop of Bheru Singh. No blood was found at place 'A' in the site plan. Even recovery memos Ex. P-3 and Ex. P-4 clearly show some blood stained stones have been recovered from place A-2 and B inside the shop of Bheru Singh. There is no trail of blood from place 'A' to place A-2 and B shown in the site plan. creates doubt in the prosecution story whether any injury has been caused at all at place 'A' by the accused-appellants. P-4 clearly show some blood stained stones have been recovered from place A-2 and B inside the shop of Bheru Singh. There is no trail of blood from place 'A' to place A-2 and B shown in the site plan. creates doubt in the prosecution story whether any injury has been caused at all at place 'A' by the accused-appellants. No such explanation has been given by the prosecution while the injuries have been caused initially at place 'A' why the blood has not been taken from place 'A' specially P.W. 9 Bheru Singh has stated after inflicting injury by Deep Chand some blood of Foza Singh fell clown on the ground but no such blood has been shown in the site plan nor recovered from place 'A' shown in site plan. 13. P.W. 3 Pritam Singh is relation of deceased having criminal background facing trial in two different murder cases. He is informant in this case. In complaint Ex. P-11, he alleged that incident took place at 5.00 p.m. Even in examination-in-chief, he gave same time and further alleged that on 11.9.1992 while he was coming from the Court of SDM, Pachpahad, he witnesses the scene while accused appellants gave beating to Foza Singh, while he was starting his motor cycle. But in cross, he has admitted that he went to Court at 11.00 a.m. but that day was being holiday, the Courts were closed and he returned from the Court at about 12.00 noon. While he returned at 12.00 noon, could he see the incident which happened at 5.00 p.m. Either the incident could have taken place at 12.00 noon or P.W. 3 Pritam Singh is not telling truth. Not only , he is a chance witness, therefore to rely upon such a partisan witness for conviction is not safe. 14. The other relation of deceased is P.W. 6 Mukand Singh. He has stated that during discussions on politics among accused Deep Chand and Kalu Singh, Madan Singh, Arjun Singh, Bhagwan Singh, there was exchange of hot words. Foza Singh sent the accused out. He felt insulted and threatened Foza Singh that he will see him and just after some time, the accused-appellants came and gave beating to deceased Foza Singh. He has stated that during discussions on politics among accused Deep Chand and Kalu Singh, Madan Singh, Arjun Singh, Bhagwan Singh, there was exchange of hot words. Foza Singh sent the accused out. He felt insulted and threatened Foza Singh that he will see him and just after some time, the accused-appellants came and gave beating to deceased Foza Singh. Mukand Singh is the real brother of deceased and he claimed to be the eye witness and was standing on a short distance from the place where first time Foza Singh was attacked but inspite of, no effective steps have been taken by Mukand Singh, a real brother of deceased, to save the life of deceased Foza Singh. 15. P.W. 4 Madan Singh, P.W. 7 Shiv Raj Singh and P.W. 8 Kalu Singh are the eye, witnesses, but they are all chance witnesses except P.W. 9 Bheru Singh. 16. The prosecution case is after the incident, P.W. 3 Pritam Singh, P.W. 4 Madan Singh, P.W. 8 Kalu Singh and P.W. 9 Bheru Singh took the injured to hospital and there he was declared dead. As stated above, more than 28 injuries have been caused which were oozing blood, these witnesses have lifted him from the shop of Bheru Singh and put it in the the 'theta' and again lifted from theta and taken him inside the hospital. In natural course, their clothes must be stained with the blood of deceased, but not even a single cloth of the witnesses has been seized or found stained with human blood. That fact also casts doubt on the case of the prosecution, whether these witnesses have seen the incident and taken the dead body of Foza Singh to Hospital. 17. From the very beginning, the case of the prosecution is that there was discussion between the accused Deep Chand and these eye witnesses. Some hot words were ex-changed between them as they were belonging to rival groups, therefore, the possibility cannot be ruled out that these eye witnesses from a particular group have falsely implicated that accused Deep Chand and the members of his family, specially when no material is found on record that any injury has been caused at place 'A' shown in the site plan. 18. 18. The prosecution case is when hot words were exchanged between Kalu Singh and Deep Chand, Foza Singh sent home to Deep Chand, can it be said sufficient cause for Deep Chand to commit a planned murder of Foza Singh. It is also interesting to note that words were exchanged between Kalu Singh and Deep Chand, but not even a single injury has been caused to Kalu Singh. 19. Some material contradictions were found regarding time to incident in the statements of P.W. 4 Madan Singh, P.W. 6 Mukand Singh and P.W. 8 Kalu Singh. P.W. 3 Pritam Singh has stated in report Ex. P 11 that, incident took place at 5.00 p.m., while he was coming from the Court, and in cross, he has admitted that he came from the Court at 12.00 noon on 11-9-1992 P.W. 4 Madan Singh has stated on 11-9-1992, he was going towards Railway Station at 5.00 p.m. and the incident has taken place after an hour, while P.W. 8 Kalu Singh has stated that at about 3.30 p.m., while he along with Madan Singh coming from the market side, Bheru Singh was sitting alone and then these other witnesses came including the deceased and then Deep Chand discussed on politics and incident took place. This is contrary what P.W. 4 Madan Singh has stated about the time of incident. 20. It is also an admitted case of the prosecution that incident took place in market and there are hundred of independent witnesses, they could be examined as eye witnesses, but no independent witness has been examined specially from among the owners of the nearby shops of Bheru Singh and only prosecution has preferred to examine the chance witnesses. further creates doubt in the prosecution case. 21. From the defence, it is suggested that the eye witnesses were consuming alcohol along with deceased and thereafter they quarrelled and caused injuries on the person of deceased by broken bottles of liquor. 22. The perusal of these multiple injuries shows that except one or two all are superficial injuries and possibility is more that all injuries have been caused by broken bottles of liquor, specially in view of the fact that no blood was found that at place 'A' of the site plan where the assailants first caused sword and dagger blows injuries to the deceased, as per prosecution case. 23. 23. In view of these facts and contradictions found in the statements of partisan witnesses, the conviction of the accused-appellants is not justified. 24. The next evidence brought on record against the accused-appellants is weapons recovered at the instance of accused-appellants. One sword has been recovered at the instance of Deep Chand and three daggers, one each, have been recovered at the instance of other co-accused persons viz., Daulat Ram, Ganesh and Hukam Chand. The perusal of record that shows that F.S.L. report has not been exhibited, and after examination of sword and daggers, no specific blood group has been shown whether the blood group found on these weapons is the same as of the blood group of deceased. In absence of that, it is difficult to come to the conclusion that these weapons were used in the murder of Foza Singh. Not only that, an interesting fact also found from the record P.W. 14 Shyam Sunder, Malkhana In-charge has stated in Court total 10 packets in this case were deposited in Malkhana on 11-9-1992 and 12-9-1992 while the recovery of these weapons are on 18-9-1992. No such weapons were deposited in Malkhana. Where they remained after recovery. Even we directed the learned Public Prosecutor to produce the concerned record of Malkhana and even after waiting for long time, no such record is produced by the learned Public Prosecutor. In such circumstances, we have no option but to presume that these weapons viz., one sword and three daggers which claimed to have been recovered at the instance of these accused-appellants were never deposited in Malkhana and 10 sealed packets of this case were deposited on 11-9-1992 and 12-9-1992, while the recovery of these weapons were on 18-9-1992. In such circumstances, how these weapons can be connected with the crime. 25. It is further found that no question has been put to accused-appellants regarding F.S.L. report. It is set principle of law that the circumstances which have not put to the accused in their statements under Section 313 Criminal Procedure Code, cannot be used against them. Admittedly no question has been put regarding expert opinion regarding the blood found on these weapons. 26. It is set principle of law that the circumstances which have not put to the accused in their statements under Section 313 Criminal Procedure Code, cannot be used against them. Admittedly no question has been put regarding expert opinion regarding the blood found on these weapons. 26. The prosecution case is that when there was exchange of hot words between accused Deep Chand and Kalu Singh, deceased Foza Singh sent accused home from the shop of Bheru Singh and just after 10-15 minutes, accused Deep Chand came back armed with sword and daggers and straightway gave beating to deceased Foza Singh. They have not uttered a single word to Kalu Singh with whom hot words were exchanged by Deep Chand. Not only that, on place 'A' in the site plan where the beating has been given first, no blood is found. No other material brought on record to support sword and daggers blows were given, first at place 'A' in the site plan. The injuries found on the person of deceased could be caused by broken bottles of liquor and is more likely, considering the nature of injuries, no blood group as ascertained from the blood found on the weapons, so recovered. These facts clearly show that genesis of the incident has been suppressed. also creates doubt in the story of the prosecution. 27. In view of the facts discussed above and multiple superficial injuries found on the person of deceased which is more likely to be caused by broken bottles instead of sword and daggers and the ocular evidence is not found corroboration with the medical report and eye witnesses are partisan witnesses, to convict the accused-appellants on such evidence, is not justified specially when genesis of incident has been suppressed. Therefore, in our considered opinion, the prosecution has failed to prove its case beyond reasonable doubt the accused-appellants have committed the murder of Foza Singh. In the result, the appeal is allowed and the conviction and sentence awarded to the accused-appellants are set aside. They are acquitted from the charges levelled against them. Accused Hukam Chand and Ganesh are on bail, they need not surrender to their bail bonds. Accused Daulat Ram and Deep Chand are in jail. They be released forthwith, if not required in any other case. Appeal allowed. *******