JUDGMENT 1. - All these appeals have been heard together and are decided by this common judgment as they arise out of a common judgment passed by the learned Sessions Judge, Jalore. 2. The prosecution case is that on 21.9.92 at 4-5 p.m., complainant's mother Smt. Singari was grazing sheep and goats in her field, where the appellants came. The appellant Bharmal was armed with axe and lathi and the other two appellants Naringa and Anna were armed with lathis. Bharmal gave one lathi blow to P.W. 2 Singari and on hearing her cry, deceased Kana, who was returning from other village, came to the spot and thereafter all the three accused persons gave beating to him. Later, he succumbed to his injuries. At that juncture, three persons Ganesha P.W. 6, the son of the deceased; Amra P.W. 3 and Devidan P.W. 1 reached to the place of incident and as they were given threat by the accused-appellants, they did not try to rescue him. They had seen the incident. Ganesha P.W. 6 had lodged the F.I.R. at Police Station - Jhab on 22.9.92 at 8.15 a.m. Dead body of Kana was sent for post-mortem. The post-mortem was conducted by Dr. Liladhar P.W. 9. He found the following injuries on the dead body of Kana:- " 1- dqpyk gqvk ?kko cka;h vka[k ds HkkSag ds mij 2 bap x 0-7 lsa0eh0 2- dqpyk gqvk ?kko flj ds vksDlhihVy {ks= esa 1 bap x 0-6 lsa0eh0 3- dqpyk gqvk ?kko [kksiM+h ds vksDlhihVy {ks= esa ihNs dh Hkkx ij 3 bap x 0-7 lsa0eh0 4- dqpyk gqvk ?kko nkfgus ikao ds uhpys Hkkx esa lwtu lfgrA bap x 1 lsaeh0 x 1 lsaeh0- 5- fuyxw fu'kku vkSj lwtu 4 bap x 1 bap ;g fuyxw fu'kku Nkrh ds ihNys Hkkx ij Fkk vkSj frjNk Fkk blds vklikl lwtu Fkh] nckus ij gM~Mh VwVus tSlh vkokt vk jgh FkhA " The doctor opined that death had occurred from injury to left lung (due to which haemorrhage had occurred from left lung to puncture of left lung, due to 6th fracture of rib) due to head injury. Site inspection memo was prepared, which is Ex. P/4. All the appellants were challaned and tried for the offences under section 302 read with Section 34 Indian Penal Code. 3. Site inspection memo was prepared, which is Ex. P/4. All the appellants were challaned and tried for the offences under section 302 read with Section 34 Indian Penal Code. 3. The prosecution has examined four eye witnesses P.W. 1 Devidan, P.W. 2 Singari, wife of the deceased; P.W. 3 Amra and P.W. 6 Ganesha, son of the deceased. The learned Sessions Judge did not rely on the statements of the two eye witnesses P.W. 1 Devidan and P.W. 3 Amra. According to him, they were not present on the spot at the time of the incident and they had not seen the incident. He has relied on the evidence to P.W. 2 Singari and P.W. 6 Ganesha. He found the testimony of the eye witnesses corroborated by the recovery of the axe and lathi from the accused persons on the information supplied by them under section 27 of the Evidence Act. He found all the accused-appellants guilty of the offence under section 304 Part- II read with Section 34 Indian Penal Code and convicted them for seven years' rigorous imprisonment and fine of Rs. 200/- and in default, two months' simple imprisonment. The accused- appellant Bharmal was further found guilty under section 323 Indian Penal Code and convicted for fifteen days' simple imprisonment. Aggrieved by the said conviction, these appeals have been preferred by the appellants. 4. The prosecution has examined four eye witnesses. The learned Sessions Judge has disbelieved the statements of the two eye-witnesses P.W. 1 Devidan and P.W. 3 Amra. On consideration of their evidence, I do not find any ground to interfere with the conclusion arrived at by the trial Court in respect of these witnesses. P.W. 2 Singari has stated that in the afternoon, she was grazing sheep and goats in her field. At that time, accused Bharmal, Naringa and Anna reached the spot. Bharmal was carrying an axe and stick. He went to cut the shrubs of her field and when stopped, Bharmal inflicted a lathi injury on her waist. She raised hue and cry. Her husband, who was returning from Nai Bali, rushed to the spot. On seeing him, all the three accused persons left her and attacked him with sticks. On hearing her cry, her son Ganesha, Devidan and Amra reached the spot. She raised hue and cry. Her husband, who was returning from Nai Bali, rushed to the spot. On seeing him, all the three accused persons left her and attacked him with sticks. On hearing her cry, her son Ganesha, Devidan and Amra reached the spot. They were threatened by the accused persons not to interfere and thereafter, the accused persons ran away from the spot. She has stated that the reason for giving beating to her husband, was that one Methi sold the field to one Moola S/o Amra P.W. 3 and the accused persons were having suspicion that her husband Kana was behind this transaction. In cross-examination, this witness has said that the beating was given in her field but her husband fell in the field of Naringa, the accused. She is not in a position to tell as to who had caused which injury as all the accused persons had jointly assaulted. When her husband fell in the field of Naringa, she alongwith her son lifted her husband and brought him to their own field. Thereafter Devidan and Amra, the other witnesses left the place. It is admitted that Kana has three brothers. For whole of the night, she alongwith her son sat with the dead body of her husband and her husband's brothers were not informed. She has admitted that Bhanwara Ram is residing about 40 paces from the place of the incident but she had not informed Bhanwara Ram. The report was not lodged because no conveyance was available. The other eye witness P.W. 6 Ganesha deposed that the accused persons came to his field. Bharmal was having lathi and axe and the others had lathis. Bharmal inflicted a lathi blow on his mother's waist. She raised a cry. On hearing her cry, his father who was returning from Nai Bali rushed to rescue her. When he reached there, all the accused persons attacked and inflicted injuries. He alongwith Devidan and Amra reached the spot but could not intervene as they were threatened by the accused persons. He had seen all the accused persons inflicting injuries by lathis to his father. The accused persons thereafter ran away from the spot. When he reached there, all the accused persons attacked and inflicted injuries. He alongwith Devidan and Amra reached the spot but could not intervene as they were threatened by the accused persons. He had seen all the accused persons inflicting injuries by lathis to his father. The accused persons thereafter ran away from the spot. He left his mother with the dead body and went to the village to bring a conveyance for lodging a report but he could not get the conveyance and he stayed with his mother for the whole night near the dead body of his father. Next day morning at 6 O'clock, he had contacted the Patwari and got the report written by him and that report was submitted in the police station. The report is Ex. P/10. In the cross-examination, this witness has admitted that he had not seen the accused Bharmal inflicting injuries to his mother. He had shown the place of incident to the police. He had stated that when the quarrel started, his father was in his field and when he fell down, the accused persons lifted him to their field and again gave beating to him. Then further, he has deposed that he had not seen the accused persons lifting his father and taking him to their field. When he reached to the spot alongwith Amra and Devidan, they saw his father lying on the land of the accused persons. He had only seen his father lying there. 5. The counsel for the appellants has argued that the so called eye witnesses are not eye-witnesses but are the false witnesses. They had not seen the incident. The dead body of Kana was found lying in the filed on 22.9.90 in the morning. Thereafter the report was made against the appellants only on the basis of suspicion. 6. P.W. 6 Ganesha has admitted in the cross-examination that he had not seen the incident as he had reached to the spot later on. When he reached the place of incident, he saw his father lying on the ground. P.W. 2 Singari has stated that the incident had started in her own field. There is a map prepared Ex. P/4 at the instance of Ganesha P.W. 6 and as per the Investigating Officer, the place of occurrence is 17 paces inside the field of the appellant Naringa. P.W. 2 Singari has stated that the incident had started in her own field. There is a map prepared Ex. P/4 at the instance of Ganesha P.W. 6 and as per the Investigating Officer, the place of occurrence is 17 paces inside the field of the appellant Naringa. According to this witness, the place of occurrence is their own field, whereas as per the site plan and the Investigating Officer P.W. 12, the place of occurrence is far away in the field of Naringa. The F.I.R. in this case was lodged after 16 hours of the occurrence. The distance of police station from the place of occurrence is only 9 Kms. The reason given for not making the immediate report is that P.W. 6 Ganesha could not arrange for transport. It does not appear to be believable statement that the transport was not available. When such a serious nature of incident had happened in the village and a man belonging to that village had died. It is again strange that he has not informed anybody about the incident in the village even to his uncles and wife who are residents of the village. Bhanwar Singh, whose dhani is about 40 paces away from the place where the dead body was lying, was not informed. Further, it is most unnatural that the report will not be lodged to the police immediately when the police station is only 9 Kms., on account of non-availability of the transportation. The delayed F.I.R. raises strong suspicion about the happening of the incident as alleged by the witnesses. Further, it has come in the statement of the Investigating Officer P.W. 12 Bhanwar Singh that the F.I.R. was got written by the Patwari on the day of the occurrence i.e. 21.9.92 whereas as per P.W. 6 Ganesha, the report was written by the patwari in the morning of 22.9.92. The scribe Sohan Singh Patwari of this report was not examined although he was cited as a witness by the prosecution, of the written report was prepared by the Patwari on the date of the incident i.e. on 21.9.92, then it appears that there was another report written by the Patwari on 22.9.92 as per the evidence of P.W. 6 Ganesha. Whether there were two reports prepared by the Patwari, the position could have been made clear, had Sohan Singh Patwari would have been examined. Whether there were two reports prepared by the Patwari, the position could have been made clear, had Sohan Singh Patwari would have been examined. Sohan Singh Patwari could have explained the mystery of two reports. It causes a doubt as to the truthfulness of the prosecution case. Besides this, the conduct of P.W. 2 Singari and P.W. 6 Ganesha appear to be abnormal. It appears highly unnatural that the wife and son had guarded the dead body of the deceased in the field for whole night and nobody came to help them from the village including the relatives and neighbour particularly so when it has come in the evidence of P.W. 6 Ganesha that he had went to the village to fetch conveyance, indicates that by that time villagers must have come to know about the incident. Had the incident taken place as alleged on 21.9.92 at 4 p.m., number of villagers would have gathered at the place including the relations and neighbours. It has come in the evidence of P.W. 2 Singari and P.W. 6 Ganesha that the injured body of Kana was lying in the field of the accused persons and was brought to their own field and in the process, their clothes received blood stains. The clothes were neither seized nor produced to prove the fact that these eye witnesses were at the spot when the incident took place. These witnesses were not able to state as to who inflicted what injury on the deceased. The weapons recovered-from the accused persons were not produced in the Court. None of the weapon was identified by the eye witnesses. The weapons were not sent for examination to the Public Analyst nor any report in respect thereof was produced before the Court. P.W. 4 Naringa has not supported the recovery of the lathi from the accused persons and, therefore, under these circumstances, the recovery of the weapons from the accused persons simply, could not directly or indirectly connect the accused persons with the commission of the crime. The injuries on the body of Singari P.W. 2 was not proved by P.W. 9 Dr. Liladhar examined by the prosecution. This would have proved the presence of P.W. 2 Singari at the time of the incident. 7. The injuries on the body of Singari P.W. 2 was not proved by P.W. 9 Dr. Liladhar examined by the prosecution. This would have proved the presence of P.W. 2 Singari at the time of the incident. 7. On the overall consideration of the evidence on record, it appears that there is a discrepancy as to the place of occurrence as stated by the two eye witnesses and the site inspection memo. P.W. 6 Ganesha has not seen the incident as he had reached the spot after the incident as per his own statement. The abnormal conduct of P.W. 2 Singari wife and the son in not informing the death of Kana to the villagers or to their close relatives, the statement that they remained with the dead body for the whole night alone without their being anybody from the village, lodging of the F.I.R. after 16 hours of the incident and non-production of the weapons in the Court, alleged to have been used in the occurrence or identification by the witnesses, absence of report of chemical examination, indicates that the incident has not happened as stated by P.W. 2 Singari and P.W. 6 Ganesha. It shows that they were not present at the spot at the time of the incident and the report was made to the police only after the dead body was found in the next day morning. 8. The conviction is based only on the basis of the testimony of P.W. 2 Singari and P.W. 6 Ganesha corroborated by the seizure of axe and lathis. As I have already held that the statements of P.W. 2 Singari and P.W. 6 Ganesha are not reliable, they were not present at the time of the incident and as such, the prosecution has failed to prove its case beyond reasonable doubt against the accused persons. 9. In the result, the appeals are allowed. The convictions and sentences passed against the appellants are set aside. The appellants are in jail. They shall be set at liberty forthwith if not required in any other case.Appeal allowed. *******