Honble PALSHIKAR, J.—This appeal is directed against the order dated 26.9.89 passed by the Sessions Judge, Churu, in Sessions Case No. 14/87 convicting the accused appellants of an offence u/s. 302 of the Indian Penal Code for committing murder of Amarnath and Bajrang Nath. The conviction was u/s. 302/34 of the Indian Penal Code. (2). The appeal was filed by the accused from jail and they were unrepresented. We, therefore, requested Mr. Vineet Kumar Mathur, advocate, to assist as Amicus-curiae in this case and defend the accused. With the assistance of the learned Public Prosecutor, Mr. V.R. Mehta and Mr. Vineet Kumar Mathur, learned counsel for the accused, we have scrutinized and re-appreciated the evidence on record. (3). The prosecution case, in brief, is that at about 2.00 P.M. on 4th November86, Amarnath and Bajrangnath were working in their field when their camel started going towards the adjacent field, they stopped it. However, the cultivators of the adjacent field, i.e. the accused persons wanted to put the camel in the Govt. Cattle Pond. However, the deceased objected to such doing and, therefore, the accused thrashed the deceased with lathis and fodder lifter (Jai). The accused are requested by the witnesses to give up the beating and the injured were taken to hospital. On the way they died. First information Report was lodged, investigation was conducted and four of the accused persons were arrested and prosecuted. The prosecution has examined, in support of its case, 15 witnesses. None was examined in defence. The learned Sessions Judge, on marshalling the facts and appreciating the evidence on record, came to the conclusion that the accused persons have committed murder of the deceased in furtherance of their common intention to do so. It is this order of conviction which is assailed before us by Mr. Vineet Kumar Mathur, learned counsel appearing Amicus-curiae of assault in for the accused. He submitted that there is no independent evidence this case. The evidence as it stands on record is unbelievable and grossly insufficient to warrant conviction u/s. 302 /34 of the Indian Penal Code. | (4). Mr. Mathur submitted that the First Information Report was lodged in Police Station Ratangarh at about 10.30 P.M. It is lodged by Smt. Lichhma, mother of the deceased, PW/1. It was contended by Mr. The evidence as it stands on record is unbelievable and grossly insufficient to warrant conviction u/s. 302 /34 of the Indian Penal Code. | (4). Mr. Mathur submitted that the First Information Report was lodged in Police Station Ratangarh at about 10.30 P.M. It is lodged by Smt. Lichhma, mother of the deceased, PW/1. It was contended by Mr. Mathur that the delay in lodging the FIR creates a serious doubt on the veracity of the report and the allegations made therein. According to him, the incident is alleged to have taken place at 2.00 P.M. and the injured persons Amarnath and Bajrang Nath along with their mother Lichhma were taken by camel cart to Ratangarh where Lichhma was admitted for treatment and Amarnath and Bajrang Nath were pronounced dead. According to the learned counsel it was improbable thereafter for Lichhma to go to the Police Station Ratangarh and lodge the First Information Report. Commending on the evidence of Lichhma, the learned counsel submitted that there are several omissions in the testimony of this witness. She has stated in her examination-in-chief at one place that she did not lodge the First Information Report. Then she has retarded from that statement and again in the cross-examination she asserted that she did not lodge the First Information Report. The First Information Report does not mention the part played by witness PW/5 Mangilal. It does not speak of presence of Godawari PW/2. According to Mr. Mathur, therefore, the real happenings on 4.11.86 have not come on record at all and in such circumstances, no conviction could be recorded u/s. 302 I.P.C. (5). Mr. Mathur then pointed out several discrepancies and contradictions in the evidence of PW/1, Lichhma, PW/2 Godawari and PW/5 Mangilal. According to the learned counsel, these three are the only eye-witnesses as alleged by the prosecution. Statement of Lichhma, PW/1 and Mangilal PW/5 exclude the presence of PW/2 Godawari. Even Godawari states in her deposition that Mangilal arrived at the scene of offence earlier to her. In the ultimate analysis, according to the learned counsel, the conviction of the accused persons will rest solely on the testimony of Lichhma and Mangilal. (6). It was then pointed out by Mr. Mathur that according to the witnesses, serious injuries were caused by fodder lifter (Jai). In the ultimate analysis, according to the learned counsel, the conviction of the accused persons will rest solely on the testimony of Lichhma and Mangilal. (6). It was then pointed out by Mr. Mathur that according to the witnesses, serious injuries were caused by fodder lifter (Jai). PW/2 Godawari states that ^^tSb ds flax tks Ms<+ nks QqV yEcs Fks tks vkjikj kjhj ls fudky fn;s FksA** But the medical evidence belies this statement. There is no punctured wound on any of the deceased. No doubt some exaggeration is possible by the witnesses and should, therefore, be ex- cused. However, such exaggeration is not liable to be ex-cused. According to the learned counsel, therefore, no conviction can be sustained in the present case. (7). We have re-appreciated the evidence on record. PW/1 Lichhma, who is the mother of the deceased, has stated that all the four accused persons came and started assaulting Amarnath and Bajrang Nath and she was injured on arms by Luna Ram. She has then stated that when wife of Bajrang Nath tried to intervene she was chased away by Luna Ram and she went into the Dhani. In her examination- in-chief, she has stated first that she did not give report in the Police Station and then she has stated that she did give the report. In the cross-examination she has, however, stated that Mangilal came on the scene after her sons were killed:– ^^ekaxhyky xokg esjs csVksa dks ekj nsus ds ckn ig¡qpk FkkA ekaxhyky ig¡qpus ls igys esjs csVs ej pqds FksA** Then she has stated that Rukan Nath, PW/14 came about an hour after the incident. She also states that her daughter Godawari, PW/2 had taken the cattle to water and came on the scene after the assault. Then she has stated that when Mangilal came the accused caught hold of hies neck. If the evidence of this witness is scrutinized it will be seen that there are several discrepancies. If she has not lodged the First Information Report, the author of the report obviously would be Mangilal, who in his deposition specifically denies such position. He asserts that it was Lichhma, PW/1, who has lodged the First Information Report. If the evidence of this witness is scrutinized it will be seen that there are several discrepancies. If she has not lodged the First Information Report, the author of the report obviously would be Mangilal, who in his deposition specifically denies such position. He asserts that it was Lichhma, PW/1, who has lodged the First Information Report. If the testimony of Lichhma is to be accepted, Mangilal, Rukan Nath and Godawari cannot be believed to be eye-witnesses, as according to PW/1 Lichhma, all these persons came on the scene of offence after the assault was over. According to this witness, the only other eye-witness is Sanju, w/o Bajrang Nath, PW/13. In such circumstances, we feel it unsafe to accept the testimony of this witness without adequate corroboration. (8). PW/2 is Godawari, daughter of PW/1 Lichhma, sister of the deceased. This witness states that when she came home she saw the accused persons beating the deceased. She then states that she tried to save the deceased, then she was chased away by Luna Ram and Arjun Ram. She has also stated when she came there Rukan Nath and Mangilal were already there:— ^^ekSds ij :du ukFk vksj ekaxhyky vk x;s FksA** In cross-examination the witness states that she, Mangilal and Rukam Nath reached the spot at the same time. She has deposed in the cross-examination that the injury caused by jai was through and through. This deposition of the witness is belied by the medical evidence which does not disclose any punctured wound. This witness has then stated in the cross-examination that Mangilal begged the accused not to further injure the deceased on which the beating was stopped. Mangilal also states so and both of them are corroborated by Rukan Nath, PW/14. However, this statement is not supported by Lichhma. According to Lichhma, PW/2 Godawari was not at the scene of offence at the time when the offence was committed. PW/2 Godawari states that she saw the incident. There is thus, no corroboration found in the testimony of Godawari to the testimony of PW/1 Lichhma. (9). Mangilal, PW/5 is the next eye-witness. This witness has said that he heard shouts and commotion and, therefore, climbed a sand-kila and saw the accused dragging the deceased and throwing them in the field of Bhurnath. He has said that Narain had Jai in his hand and the other accused had stricks. (9). Mangilal, PW/5 is the next eye-witness. This witness has said that he heard shouts and commotion and, therefore, climbed a sand-kila and saw the accused dragging the deceased and throwing them in the field of Bhurnath. He has said that Narain had Jai in his hand and the other accused had stricks. He then states that he saw the accused persons assaulting the deceased. He has deposed that the accused were so furiously hitting the deceased that he is unable to state who was hitting whom and where. But he is definite in his statement that Arjun Ram was only standing by and did not participate in any assault. He then states that he went near the accused and prayed them not to assault any further on which the accused persons left. According to this witness, therefore, the assault took place in the field of Bhur Nath, after the deceased were dragged into that field. According to PW/1 Lichhma, the assault took place in their own field. She does not speak of any dragging. He then states that the First Information Report was lodged by Lichhma. In view of the fict that this witness completely absolves accused Arjun Ram of any crime, permission was sought by the prosecution to declare this witness hostile in relation to his deposition regarding Arjunram, as his earlier statement before the police did assail positive action to Arjunram. The statements were denied by the witness. Thus, even according to the prosecution this witness was required to be declared hostile and, therefore, Rule of Caution requires that the testimony of this witness is accepted only after corroboration. No such corroboration is coming forward from the evidence of PW/1 Lichhma, as according to her, this witness was not at all an eye-witness. In his cross-examination, this witness has stated that Rukan Nath came on the scene after 15 minutes of arrival of this witness. Godawari, PW/2 States that she, Rukan Nath and Mangilal came at the same time. Assuming that there can be confusion about time, the fact remains that the witnesses did not corroborate each other on the question of presence of each other. If Rukan Nath came 15 minutes after Mangilal, then he could not be a witness either to the assault or to the requests made by Mangilal to the accused persons to give up beating. If Rukan Nath came 15 minutes after Mangilal, then he could not be a witness either to the assault or to the requests made by Mangilal to the accused persons to give up beating. If he was always there, then the witness is stating falsehood that Rukan Nath came late. He states in cross- examination that though the accused were armed with jai, the stick part of it was used and not the sharp edge. He, thus, contradicts Godawari, W/2 completely on this aspect. According to this witness, majority of the wounds were on the buttocks, legs and hands of the deceased. According to this witness Bajrang Nath and Amarnath were talking and demanded water. PW/1 Lichhma says that the deceased were not conscious. (10). PW/3 Gopal Nath is the father of the deceased. PW/4 Adu Ram is Panch. PW.6 Tol Nath is brother of the deceased. PW/3 Gopal Nath and PW/6 Tol Nath are not eye-witnesses. Their testimony is completely hear-say as they have deposed to what they were told by their mother Lichhma, PW/1. However, it is pertinent to note that PW/3 Gopal states that when he asked PW/1 Lichhma as to what happened, she told him that their camel was taken by accused Narain Ram to his field and when her sons objected to this, the accused persons started beating her sons. Lichhma, PW/1, however, no where states this in her deposition. Therefore, even this witness does not corroborate any of the eyewitnesses. Same is the case of PW/6 Tol Nath. PW/7 is Dr. Satish Kumar Sharma, who conducted the post-mortem. PW/8 is Dr. B.L. Khardia who treated PW/1 Lichhma. PW/9 Mag Raj is Patwari, PW/10 Richpal Singh is the Malkhana Incharge. PW/11 Som Nath is a Constable. PW/12 Deda Ram is a Panch and their evidence is not material. (11). PW/13 is Omi @ Sanju, wife of deceased Bajrang Nath. This witness states that on the day of incident their camel entered the field of Bhur Nath which was being cultivated by the accused and the camel was brought back by Amarnath when accused came near the border and they started beating the deceased. She states that then PW/5 Mangilal came and prevented further assault. According to the witnesses, accused persons severely assaulted on deceased and PW/1 Lichhma and the assault stopped only after Mangilal intervened. She states that then PW/5 Mangilal came and prevented further assault. According to the witnesses, accused persons severely assaulted on deceased and PW/1 Lichhma and the assault stopped only after Mangilal intervened. According to this witness, the accused persons assaulted the deceased in their field and then dragged them to the field of Bhur Nath. According to her, Godawari, PW/2 came to the field after the accused left. Thus, according to this witness and PW/1 Lichhma, Godawari is not an eye-witness. If their statement is accepted, there is no corroboration by the testimony of Lichhma, Godawari and Mangilal. If this statement is not accepted there is no corroboration to the testimony of Lichhma and Mangilal. According to this witness the assault took place in the field of deceased and then they were dragged. According to the deposition of PW/5 Mangilal, the deceased were first dragged to the field of Bhur Nath and then assaulted. This contradiction, in our opinion, is strong enough to create a doubt as to the place of assault. It creates a question whether the assault took place in the field of Bhur Nath or in the field of Amar Nath. In cross- examination, this witness has deposed that:– ^^ekjihV kq: gksus ds ,d ?kaVs ckn ekaxhyky vk;k FkkA edk le; le>rh gw¡A** She, thus, categorically excludes the presence of Mangilal. If this testimony is to be accepted then Mangilal is no eye- witness. The position, therefore, is that if Lichhmas statement is accepted, there is no other eye-witness. If Sanjus statement is accepted, except Lichhma there is no other eye-witness. In the evidence of Lichhma and Sanju, there are material contradictions. (12). The last witness is PW/14 Rukan Nath. According to this witness, the accused were assaulting the deceased and their mother. Sanju, PW/13 and Godawari, PW/2 were standing nearby and were crying. He states that Mangilal had arrived on the scene before the witness. He states that accused assaulted the deceased in the field of Bajrang Nath and they were then dragged to the field of Bhoor Nath. This witness states that Lichhma never went to the Police Station and Mangilal went to the Police Station. He, thus, contradicts Mangilal and supports Lichhma, if her statement that she did not lodge the First Information Report is to be accepted. (13). This witness states that Lichhma never went to the Police Station and Mangilal went to the Police Station. He, thus, contradicts Mangilal and supports Lichhma, if her statement that she did not lodge the First Information Report is to be accepted. (13). The entire scrutiny of the evidence as aforesaid will, thus, disclose that the evidence led by the prosecution does not give any clear picture as to what happened on 4th November 86. The maximum that can be inferred from this evidence is that the accused persons assaulted the deceased. (14). It was then contended by Mr. Vineet Kumar Mathur, learned counsel for the accused, relying on three decisions of the Supreme Court that the accused persons are entitled to benefit of doubt in such state of evidence. According to him, the medical evidence does not support the testimony of any of these witnesses and, therefore, benefit of doubt is liable to be given to the accused, as it cannot be said with certainty that the accused were responsible for causing death. Medical evidence shows that there is no punctured wound on the person of any deceased and Lichhma and Godawari both categorically state that the injury caused by Jai was a punctured wound. Relying on the Supreme Court decision reported in 1981 SCC (Cr.) 790 (1), it was contended by the learned counsel that benefit of doubt is liable to be given to the accused. The Supreme Court has said in that case that ordinarily assault with a spear suggests use of the spear to pierce or puncture the body of the victim. When no such wound is found, possibility of assault by spear is ruled out and, therefore, benefit of doubt is liable to be given. According to the learned counsel, in the present case also the possibility of assault by Jai has to be ruled out and benefit of doubt is liable to be given to the accused. (15). When no such wound is found, possibility of assault by spear is ruled out and, therefore, benefit of doubt is liable to be given. According to the learned counsel, in the present case also the possibility of assault by Jai has to be ruled out and benefit of doubt is liable to be given to the accused. (15). Then, relying on the decision of the Supreme Court in 1991 SC (Cr.), 152 (2), where the Supreme Court has said that discrepancy between the prosecution story and medical evidence regarding the nature of the injuries and the alleged weapons of attack cast a doubt on the testimony of the supposedly eye-witnesses, benefit of doubt is liable to be given, it was contended by the learned counsel that there are obvious discrepancies in the evidence of the prosecution witnesses. It is certainly not corroborated by the medical evidence regarding absence of punctured wound. In such circumstances, the eye-witnesses account of assault cannot be wholly true and it would be unsafe in such circumstances, to convict the accused persons on such scanty evidence. (16). In the alternative, it was submitted by the learned counsel that in no case conviction u/s. 302/34 I.P.C. is permissible. Even if the prosecution evidence is accepted, at the best it proves an assault by the accused with a view to chastise the deceased and they had no intention of causing death. Support is sought for this argument from the medical evidence and the testimony of PW/5 Mangilal that all the injuries on the person of the deceased were on non-vital part of the body, i.e. arms, legs and buttocks. Therefore, at the most conviction can be u/s 304 Part- II. For this proposition, he relied on a decision of this Court reported in 1987 WLN, 246 (3). (17). On a careful consideration of the evidence on record, the cases cited at the Bar by the learned counsel, we find it unsafe to accept the uncorroborated testimony of PW/1 Lichhma. Even the testimony of PW/2 Godawari, PW/5 Mangilal and PW/14 Rukan Nath has several contradictions. There is no certainty from the deposition of these witnesses regarding the place of assault, the manner of assault and the reason of assault. In our opinion, therefore, it is a case where the accused are liable to be given benefit of doubt. Even the testimony of PW/2 Godawari, PW/5 Mangilal and PW/14 Rukan Nath has several contradictions. There is no certainty from the deposition of these witnesses regarding the place of assault, the manner of assault and the reason of assault. In our opinion, therefore, it is a case where the accused are liable to be given benefit of doubt. We do not agree with the findings given by the learned Judge that the prosecution has proved beyond reasonable doubt the guilt of the accused. (18). In the result, therefore, we accept the appeal and the conviction & sentence of the appellants an hereby quashed & they are acquitted of the offences u/s. 302/34 IPC. The Jail authorities be informed accordingly.