JUDGMENT 1. - Puran Ram has preferred this appeal against the Judgment and order passed by the learned Sessions Judge, Sriganganagar on 29.8.90 whereby he was convicted under Section 304 read with Section 34 IPC and sentenced to undergo rigorous imprisonment for 3 years' and pay a fine of Rs. 200/- in default to further undergo rigorous imprisonment for two months'. 2. On 21.10.1979, Kishana Ram had lodged the report Ex.P.1 with police station, Ghamudwaii stating therein that he had been informed by one Moman Ram that at about 6 PM, Puran Ram, Rewant Ram, Bishna Ram and one more person had attacked Dana Ram, his father-in-law with Gandasis and Lathis. In the FIR, it was stated that on receiving this information, he went to the spot alongwith Moman Ram where he found Dana Ram lying on the ground having injuries on his head and back. It was further stated in the FIR that his brother in law Puran (Son of deceased) had some altercation with the wife of accused Puran Ram some 8-9 days back. On this report, a case under Section 307 IPC was registered. After sometime Dana Ram died and, therefore, Section 302 IPC was added. After the post-mortem examination of the body of Dana Ram and usual investigation, the police submitted challan against 4 persons. The learned Sessions Judge framed charges under Section 302 IPC against the accused persons. The prosecution examined PW-1 Moman Ram, PW-2 Kashi Ram, PW-3 Kishan Ram, PW-4 Dr. R.P. Punia, PW-5 Devi lal, PW-6 Bahadur Ram, PW-7 Puran Ram, PW-8 Sriraj Ram, PW 9 Munshi Ram (Station house officer), PW-10 Lalchand, PW-11 Sukhdeo Singh, PW-12 Shatrugan, PW-13 Bishna Ram, PW-14 Babulal and PW-15 Sh. R.K. Jain (MJM, Sriganganagar). The accused in their statements recorded under Section 313 Cr.PC denied having committed any offence. The learned Sessions Judge after hearing the parties acquitted three accused of all the offences, but convicted Puran Ram for offence under Section 304 read with Section 34 IPC and sentenced him as above. Hence this appeal. 3. The learned counsel for the appellant has contended that when out of the 6 eye witnesses, four had not supported the prosecution case, the learned Sessions Judge has committed error in convicting the accused on the basis of the evidence of two witnesses PW-2 Kashi Ram and PW-5 Devi lal who are father and son. Hence this appeal. 3. The learned counsel for the appellant has contended that when out of the 6 eye witnesses, four had not supported the prosecution case, the learned Sessions Judge has committed error in convicting the accused on the basis of the evidence of two witnesses PW-2 Kashi Ram and PW-5 Devi lal who are father and son. He took me through the statements of the witnesses and urged that no reliance could be placed on their testimony. Mr. Garg, further submitted that the FIR was recorded after the death of Dana Ram, but police has shown its recording at 8.20 p.m. and by this, it should be found that the investigation was tinted. He pointed out that factum of enmity between accused and deceased has not been established on record. On the other hand, the learned Public prosecutor appearing for the State has tried to support the judgment of trial court. 4. On a careful consideration of the entire evidence produced in the case, I find force in the arguments of learned counsel for the appellant. A perusal of FIR Ex.P.1 reveals that names of two eye witnesses, Kashi Ram and Devi lal who have been declared hostile and on whose testimony the learned Sessions Judge has placed reliance, were not mentioned therein. It has come in the evidence that flour mill of these two witnesses is situate near the place of occurrence. Had these two witnesses been there and seen the occurrence, Moman Ram would have certainly seen them and these witnesses would have gone at the spot to narrate the occurrence to Moman Ram and Kishan Ram after they reached the place of occurrence. In the normal human conduct and behaviour, it has been seen that whenever murderours assault is made on a person, the neighbours come out and extend help to the victim moreso when they themselves witness the occurrence and they are not inimical to the victim. In this case, both the witnesses have stated that they were witnessing the occurrence from hardly 30 steps away from the place of occurrence. The fact that they did not go to the victims and did not relate the occurrence to Moman Ram and Kishan Ram, goes to show that they were not there and they had not seen the occurrence. The fact that they did not go to the victims and did not relate the occurrence to Moman Ram and Kishan Ram, goes to show that they were not there and they had not seen the occurrence. In this connection, this part of the statement of Kashi Ram is relevant wherein he has deposed that he did not tell anyone about this occurrence before giving statement before the police. Same is true of Devi lal PW-5 when he has said that on seeing the occurrence, he did not cry or that he did not tell anyone about this occurrence afterwards. It is significant to point-out that police had recorded the statements of these witnesses on 25.10.79 i.e. 4 days after the occurrence. Both the witnesses belong to the same village where the occurrence had taken place and they were having a garage and a flour mill near the place of occurrence. It is not the case for the prosecution that witnesses had gone out during these 4 days. By the late interrogation of these witnesses by the police, it has to be inferred that in reality they had not seen the occurrence but they have been prepared to depose in favour of the prosecution case. In this connection, this part of the statement of Kashi Ram PW-2 is relevant he has deposed that police had told him that since he was having flour mill near the place of occurrence, he will have to give evidence in the case. It is thus manifest that in order to procure the evidence in this case, the police had forced these two witnesses who are father and seen to give statements in support of the prosecution case; whereas as a matter of fact they had not seen the occurrence. It may also be pointed out here that Moman Ram PW-1 has not stated that he had seen Kashi Ram and his son Devi Lal in the garage or in the flour mill. This fact is also not stated by Kishan Ram PW-3 who is said to have reached the place of occurrence on getting information from Moman Ram. 5. In view of the aforesaid discussion of evidence, there is no hesitation in saying that the learned Sessions Judge has committed error in placing reliance on the testimony of Kashi Ram and Devi Lal. 5. In view of the aforesaid discussion of evidence, there is no hesitation in saying that the learned Sessions Judge has committed error in placing reliance on the testimony of Kashi Ram and Devi Lal. It may be noted that even the learned Sessions Judge has observed in the Judgment that the statement of Kashi Ram is vacillating as he has changed the versions in his statement. In the examination in chief, Kashi Ram stated in unequivocal terms that he did not see anyone inflicting blows to Dana Ram and that he had only seen accused Puran Ram and others running. No inference could be drawn by the running of accused Puran Ram moreso when Kashi Ram has not stated that Puran Ram was having any weapon in his hands and there was storm at that time. The witness however when cross-examined by the public prosecutor told that he had seen Puran Ram causing Gandasi blow to Dana Ram, but he did not stick to this version and in the cross-examination, on behalf of accused, he clearly stated that when he came out from the garage, he had only seen the accused running. It may be noted that witness has not been able to state as to whether accused were having turban on their heads or they were without turbans. It is not safe to place reliance on the testimony of Kashi Ram. Devi lal PW-5 in his statement recorded under Section 161 Cr.PC stated that he had seen 4 persons beating Dana Ram. However, in the court statement, he has confined the beating by accused Puran Ram and Rewant Ram. The witness has stated that he had seen 5-7 persons more besides the accused. In my opinion, the statement of Devi lal is also not such on which implicit reliance could be placed. 6. If we leave the statements of Kashi Ram and Devi lal out of consideration, there remains no evidence against the accused. As already pointed out, all other witnesses have turned hostile. Even Moman Ram who is said to have witnessed the occurrence from the very beginning has not supported the prosecution story. The learned Trial court has also observed that the FIR was not recorded at the time shown therein and it has been recorded after the death of Dana Ram. It is, thus, evident that the investigation was not fair. Even Moman Ram who is said to have witnessed the occurrence from the very beginning has not supported the prosecution story. The learned Trial court has also observed that the FIR was not recorded at the time shown therein and it has been recorded after the death of Dana Ram. It is, thus, evident that the investigation was not fair. The prosecution in my considered opinion, has failed to bring home the guilt of the accused. The trial court has committed error in convicting the accused in this case. 7. Consequently, I accept the appeal, set-aside the conviction and sentence, and acquit accused-appellant Puran Ram of the offence under Section 304 read with 34 IPC. He is on bail. He shall not surrender to the bail bonds which stand cancelled. *******