JUDGMENT 1. - This appeal is directed against the judgment and order dated 30.5.92 passed by the learned Addl. District & Sessions Judge, Ratangarh in Sessions Trial No. 3/92 convicting the accused appellants to imprisonment for life for offence punishable under sections 302/149,147 and 148 of the Indian Penal Code. 2. Briefly stated the facts giving rise to the prosecution are that on 25th March, 1986 at about 11.00 p.m. on the Holi day, several people of the village Kankar, in Ratangarh, District Churu, were sitting around the Holi Fire, when Nanu Ram, one of the accused persons took out a burning stick from the fire and ran towards the village. He was chased by Likhma Ram who took the burning stick and threw it in the water tank. Therefore, Nanu Ram accompanied by Bhanwraram, Mangilal, Malaram, Adu Ram, Sugnaram, Gyaniya and Norang Ram, came back and alleged that Likhmaram had beaten Nanuram with sticks and, therefore, Aduram said search our Likhma Ram'. It is then alleged that Rukmaram (since deceased) said that Likhmaram is with him and dared the accused persons to touch him. On that the accused persons treating Rukma Ram as basic cause of fight, assaulted him with axe and lathis which resulted in his death. 3. The First Information Report, Ex. P/21 was lodged on 26th March 86 at 7.00 in the morning by Sohan Lal, PW 5, who is brother of the deceased Rukma Ram. It is stated in the First Information Report that Likhmaram chased Nanu Ram to get him and, therefore, Nanuram and other accused came back to take revenge on Likhmaram. They were challenged by Rukmaram who was, therefore, assaulted as aforesaid. 4. The prosecution has examined 13 witnesses to prove its case. PW/5 Sohan Lal and 12 Gopal Ram are the only eye-witnesses who are real brothers of the deceased Rukma Ram. On appreciation of the evidence on record, the learned trial Judge came to the conclusion of guilt and convicted the accused as aforesaid. This order is assailed by Mr. M.L. Garg, learned counsel appearing on behalf of the accused on several grounds. He submitted- (a) that the entire story of the prosecution appears to be a concoction and true facts were not disclosed before the Court. The First Information Report is inconsistent with the testimony of the eye-witnesses, the recoveries are fake. This order is assailed by Mr. M.L. Garg, learned counsel appearing on behalf of the accused on several grounds. He submitted- (a) that the entire story of the prosecution appears to be a concoction and true facts were not disclosed before the Court. The First Information Report is inconsistent with the testimony of the eye-witnesses, the recoveries are fake. Serious factual inconsistencies exist on record and, therefore, there cannot be any conviction in the present case. (b) He then contended that admittedly there were some 50 persons present at the Holi-Fire. The Investigation Officer, PW/13 Pool Mohammed, has admitted this position along with the eye-witnesses any yet non-efforts were made to produce any independent evidence. According to the learned counsel, therefore, the fact that no such independent evidence was available speaks volumes. It appears that what happened factually is not known or disclosed. In the circumstances, conviction is unsustainable in law. (c) He then pointed out that both the eye-witnesses contradict each other on material particulars. Their conduct is wholly improbable and, therefore, they are liable to be disbelieved. (d) According to the learned counsel, the eye-witnesses are liable to be disbelieved for their conduct which appears to be improbable. According to the learned counsel it is impossible to believe that two brothers would be mute witnesses to the assault on their brother and similar silence would be maintained by 50 others present at the scene. To intervene in the quarrel and save the brother is natural. To seek aid and prevention of assault is also natural. Failure on the part of the witnesses PW/5 and PW /12 is unnatural. It creates a reasonable doubt regarding their presence at the scene of offence and, therefore, they should be disbelieved. 5. The learned Public Prosecutor, in reply, submitted that the eye-witnesses have been rightly believed by the trial Court. Their testimony is corroborated by recovery of the arm and there is, therefore, no reason to interfere with the judgment of conviction. 6. We have carefully scrutinised the record and have re-appreciated the evidence of the 13 prosecution witnesses. The learned Judge has, for valid and cogent reasons discarded the recovery of `lathis'. We agree with the reasons given by the learned Judge. PW/1 Kumbha Ram states that the recovery took place on 26th March. However, all the documents to which PW/1 was subscribed as a Panch, disclosed recovery on 27th March. The learned Judge has, for valid and cogent reasons discarded the recovery of `lathis'. We agree with the reasons given by the learned Judge. PW/1 Kumbha Ram states that the recovery took place on 26th March. However, all the documents to which PW/1 was subscribed as a Panch, disclosed recovery on 27th March. The discrepancy is not explained. The witness has stated that all the documents were prepared in the Police Station and he visited the Police Station on many occasions to sign the document. He has, thereafter, retracted the statement and said that all the documents were prepared at the site on the same day. There is, therefore, no reason to take any different view than the one taken by the learned Sessions Judge. The recoveries of lathis and exe are, therefore, of no assistance to the prosecution. 7. It is pertinent to note that according to the First Information Report, the entire incident occurred due to the skirmish between Likhma Ram and accused Nanuram. This Likhmaram has been examined by the prosecution as PW/6 and he states that he was not present at the scene of offence at any time and has no knowledge of the incident whatsoever. He has been declared hostile. The prosecution has, thus, failed to prove its basic case that the quarrel commenced due to Likhmaram. It has come in evidence of PW/5 Sohan Lal and PW/12 Gopal Ram that at the time when Rukmaram was assaulted, Likhmaram was present. According to them, Likhma Ram was the cause of quarrel and yet none of the assailants caused any hurt to Likhmaram. The deposition of Likhmaram thus creates a serious doubt regarding the origin of the incident which resulted in the death of Rukmaram. 8. PW/5 Sohan Lal is the witness who lodged the First Information Report and saw the incident. He states that Gopal Ram PW/12 went to the house and informed Doongarram and Chandra Ram that Rukma Ram has been hit on which Chandra Ram and Doongar Ram came to the spot. However, PW/4 Chandra Ram states that he was called by Nanuram and not Gopal Ram. In his cross-examination he states that before he was awakened nobody came or told him anything. However, PW/4 Chandra Ram states that he was called by Nanuram and not Gopal Ram. In his cross-examination he states that before he was awakened nobody came or told him anything. He categorically states- " eq>s ;g ekyqe ugha iM+k fd :de.kjke dks fdlus ekjk o D;k okdk gqvk eq>s rks :de.kkjke ejk iM+k feykA ukuq jke us esjs dks dqN ugha crk;kA xksiky] lksgu us Hkh ugha crk;k fd dSls >xM+k gqvk vkSj :de.k dks fdlus ekjkA " 9. This witness also states that Likhma Ram was the cause and Likhmaram was sitting on the dais when the assault commenced. He is contradicted here by Likhmaram himself who proclaims his absence from the scene. 10. It is then stated by Sohan Lal PW/5 that after the report Ex. P/21 was lodged, police came to the scene of offence on the same day. From his deposition it appears that accused Nanuram was arrested on the same day along with other accused persons. However, the arrest memo shows arrest on 27th March. The statement of the witness that the accused were arrested on the same day is, therefore, disproved. The witness has stated that approximately 50 to 60 persons were present at the Holi Fire and in cross examination he says that the accused persons were beating Rukmaram for 30 to 35 minutes. If this estimation of time is correct it is impossible to believe that the real brothers of the deceased would remain silent for a period of 30 minutes and see their brother being reduced to pulp. Even according to the doctor who conducted the post-mortem, only two of the 21 injuries found on the body were serious, the other being simple injuries. A beating for 30 minutes with lathis will reduce any healthy body to pulp. The exaggeration does riot appear to be unintended. According to us, it is a definite attempt to inculpate the accused. In this deposition this witness has said that he did not intervene for the fear of assault and because he was threatened by Bhanwra that if he intervene, he will be assaulted. However, in the cross-examination, he has admitted that Ex. P/3 does not bear this statement though he told the police about it. PW/13, Pool Mohd., the S.H.O has proved Ex. P/3 and has stated that the witness did not say so. However, in the cross-examination, he has admitted that Ex. P/3 does not bear this statement though he told the police about it. PW/13, Pool Mohd., the S.H.O has proved Ex. P/3 and has stated that the witness did not say so. Consequently, it is a positive improvement made by the witness to explain his strange conduct of not trying to save his brother. 11. The learned counsel for the appellants has pointed out many other contradictions also. Taking into consideration the further improvements made by the witness, serious omissions like non-mention of Bhanwra Ram in Ex. P/3, assertion of the witnesses that the incident took place at 11.00 p.m. as against the statement of the witnesses that it was at 9.00 p.m. create a serious doubt regarding the presence of this witness at the scene of offence. In any event, reading of his deposition does not inspire confidence. It appears that he did not know what really happened. We, therefore, find it unsafe to rely on this witness. 12. The next witness is PW/12 Gopal Ram, brother of the deceased. He asserts in his examination-in-chief that the occurrence took place at 9.00 p.m. and not at 11.00 p.m. as alleged by Sohan Lal, PW/5. He then states that the accused assaulted the deceased. He gave an explanation for not interfering as they were threatened by the accused with dire consequences if they intervene. However, no such disclosure was made by any witness in his statement under section. 161 Criminal Procedure Code. It is, therefore, a definite improvement on his earlier statement. He then says at page 78 that - " blds ckn eSa ?kj ij tkdj Mwaxjke o pUnzkjke dks dgk fd :dekuUn dks tku ls ekj fn;k gSA " Chandra Ram has been examined in the Court as PW /4 and he categorically states that he was not told anything by Gopal Ram. The statement of these two witnesses, therefore, create a doubt as to what exactly transpired, because according to Chandra Ram he does not know how the quarrel took place, why it took place and who were the assailants. It is improbable to believe that an eye-witness, who is related, would omit to mention such facts. If Chandra Ram is to be believed, Gopal Ram cannot be believed. It is improbable to believe that an eye-witness, who is related, would omit to mention such facts. If Chandra Ram is to be believed, Gopal Ram cannot be believed. It is pertinent to note that this witness PW /12 Gopal Ram said that when they were taking the injured Rukma Ram to Ratangarh, he died in front of the house of Nanuram. He states that Nanuram was his brother. Nanu Ram has been examined as PW/3. It will appear from the evidence of Gopal Ram from the quotation above that Chandra Ram was informed by Gopal Ram. Chandra Ram and Doongar Ram took the cart and went to the spot, put Rukmaram in the cart and took him towards Ratangarh, where in front of Nanuram's house, Rukma Ram died. This witness does not speak of anything being informed by him to Nanuram. The statement of Nanuram if believed requires that the statement of Gopalram is disbelieved. Gopal Ram has, nowhere stated in his deposition that he told Nanuram the names of the accused persons and the manner in which the incident occurred. However, PW/3 Nanuram states that- " eq>s esjk HkkbZ xksiky jke us vk/kh jkr dks ?kj vkdj dgk fd :dek dks ekj fn;kA mlus eqyfteku ekStwnk vnkyr ds uke crk;s FksA " This witness Nanuram has asserted that it was he who directed Doongar Ram and Chandra Ram to take the cart and go to the scene of offence. He does not, therefore, support the claim of PW/12 Gopal Ram regarding the manner in which injured Rukmaram was taken towards Ratangarh, where he died. 13. It will, thus, be seen that there are substantial discrepancies in the evidence of the prosecution. Exactly what happened is not deposed to by anybody. This witness has also admitted presence of about 50 persons when the occurrence took place. 14. Mr. M.L. Garg, learned counsel for the accused pointed out several other contradictions which are material in nature. Several submissions made in the witness box by the witnesses are not borne out by the earlier submissions made under section 161 Criminal Procedure Code. In such circumstances, for the reasons mentioned above in discarding the evidence of Sohanlal, we are unable to accept the evidence of Gopal Ram also. 15. If these two witnesses are required to be disbelieved, then there is no basis for conviction. Ex. In such circumstances, for the reasons mentioned above in discarding the evidence of Sohanlal, we are unable to accept the evidence of Gopal Ram also. 15. If these two witnesses are required to be disbelieved, then there is no basis for conviction. Ex. P/50, which is the report of the Chemical Analyser states in clear terms that there is no blood present on the axe or sticks which are recovered from the accused. In view of the injury No. 5 and 6, which were bleeding injuries, absence of blood on the axe allegedly recovered from the accused militates against the theory that the axe was used for hitting Rukmaram. There is, thus, no evidence on record to support the finding of conviction. We are unable to sustain the judgment of the learned Judge for these reasons. 16. In the result, therefore, the appeal is accepted, the judgment of conviction passed by the learned Addl. Sessions Judge, Ratangarh dated 30.5.92 is set aside. The accused be released immediately, if not required for any other offence.Appeal allowed. *******