JUDGMENT 1. This Judgment shall also govern the disposal of Criminal Appeals No. 536/89; Nana @ Basantilal v. State of M.P. and Criminal Appeal No. 540/89; Nana @ Basantilal v. State of M.P. 2. The aforesaid three appeals have been directed against the Judgment of conviction and order of sentence passed by the Additional Sessions Judge, Garoth, District Mandsaur on 20th Nov. 1989, in Sessions Trial No. 66/88, thereby convicting appellants Harishankar and Nana @ Basantilal for the offences punishable under sections 302, 307 of the LP.C. for having committed murder of Babu Khan S/o Manir Khan and attempting to commit murder of Ranglal (PW 7) in the intervening night of 16/17th August, 1987 in the reserved forest of Sangram Ghat, P.S. Bhanpura and sentencing each of the accused to undergo imprisonment of life and fine of Rs. 20,000/- for offence u/s. 302 IPC and 10 years RI and fine of Rs. 1000/- for the offence under Sec. 307 IPC, in default of fine, the appellants are further directed to suffer rigorous imprisonment for four years and one year consecutively. 3. The case of the prosecution in brief is that deceased Babukhan, Khadim Hussain (PW 6) and Ranglal (PW 7) were posted as Choukidars in the forest of Sangramghat Barrier. On 16.8.1987, when Khadim Hussain (PW 6) was sleeping in the hut situated near the barrier and deceased Babu Khan and Ranglal were sleeping out of the hut on separate cots, at about 1.00 a.m. in the night, four persons came there and started beating Babukhan and Ranglal. Babukhan and Ranglal shouted for help. Due to cries, Khadim Hussain, who was sleeping in side the hut awoke and saw that four persons were assaulting Ranglal and Babukhan. At the time of incident, a lantern was burning out side the hut. In the light of the lantern, Khadim Hussain identified present appellants Hari Maharaj and Nana @ Basantilal amongst assailants. Seeing one motor cycle, passing by the side, the appellants and their companion fled away from the spot. Immediately thereafter, Khadim Hussain came out of the hut and saw injuries of Babukhan and Ranglal. Babukhan sustained injuries on his head and other parts of the body and Ranglal sustained injuries on his chest and other parts of the body. Khadim Hussain (PW 6) rushed to Bhanpura and informed Deputy Ranger Sukhpalsingh (PW 5) about the incident. Immediately thereafter, Khadim Hussain came out of the hut and saw injuries of Babukhan and Ranglal. Babukhan sustained injuries on his head and other parts of the body and Ranglal sustained injuries on his chest and other parts of the body. Khadim Hussain (PW 6) rushed to Bhanpura and informed Deputy Ranger Sukhpalsingh (PW 5) about the incident. On information received from Khadim Hussain, Sukhpal Singh proceeded to Police Station, Bhanpura and informed the police about the incident. Thereafter, Sukhpal Singh alongwith one constable Billu @ Faryaz (PW 20) reached the place of incident by a truck. Injured Babukhan and Ranglal narrated the incident to Deputy Ranger, Sukhpal Singh and also disclosed the names of the appellants Hari Maharaj and Nana @ Basantilal as the assailants. Injured Babukhan and Ranglal were brought to Police Station Bhanpura where FIR Exh. P/12 was lodged by Khadim Hussain (PW 6). After registration of the report, statements of injured Babukhan and Ranglal were recorded by the police and they were sent for medical treatment in the hospital, Bhanpura. Both were admitted in the hospital. Injured Babukhan expired in the hospital in the morning on 17.8.1987 at 6.55. The information about the death of Babukhan was sent to Police Bhanpura on the basis of which marg report, Ex.P/2 was prepared. 4. During the course of investigation, Police Bhanpura inspected the spot and prepared the spot map. Dead body of the deceased was sent for post mortem examination. Dr. S.L. Verma (PW 4) conducted autopsy and gave his report Exh. P/8. Dr. P.K. Vyas (PW 3) examined injured Ranglal immediately after the incident and submitted Injury Report, Exh. P/4. Police also recorded the statements of the relevant witnesses. Both the appellants alongwith acquitted accused Mangilal were arrested and on completion of investigation, challan was filed in the Court of J.M.F.C. Bhanpura. 5. The trial Judge framed the charges against the accused persons under sections 302, 307 IPC. Accused persons denied the charges and pleaded not guilty. The trial Judge on the basis of the evidence of the prosecution convicted the present appellants Harishankar and Nana @ Basantilal for the offences punishable under sections 307, 302 IPC and sentenced them as stated above whereas other accused Mangilal was acquitted of the charges levelled against him. Aggrieved by the Judgment of conviction and order of sentence the aforesaid appellants have filed these appeals. 6. Aggrieved by the Judgment of conviction and order of sentence the aforesaid appellants have filed these appeals. 6. We have heard Shri Jaisingh and Shri Amit Agrawal for the appellants and Shri Vijayvargiya, Panel Lawyer for the respondent/State. 7. It was contended on behalf of the appellants that alleged eye witnesses of the incident Khadim Hussain (PW 6) and Ranglal (PW 7) were declared hostile and did not support the prosecution case. The statement of deceased Babukhan recorded by the Investigating Officer, D.K. Jain (PW 22) though admissible as dying declaration under section 32 of the Evidence Act, is not sufficient and as such cannot be considered as reliable for convicting appellants for the charges levelled against them. 8. In oppugnation, learned counsel appearing for the State, supported the judgment of conviction and order of sentence and submitted that the Judgment is based on proper appreciation of evidence of the prosecution and therefore, it cannot be interfered with. 9. We have carefully perused the record and the evidence of the prosecution witnesses. According to the prosecution case, Khadim Hussain (PW 6) and Ranglal (PW 7) are alleged to be eye witnesses of the incident. Both the witnesses in their statements, to some extent corroborated the case of the prosecution on the point of incident but have stated that they did not identify any of the assailants at the time of incident. 10. Khadim Hussain (PW 6) in his statement stated that in the night of the incident, himself, deceased Babukhan and Ranglal were posted as Choukidar at Sangram ghat forest and they were sleeping at Sangramghat barrier. The witness further deposed that he was sleeping in side hut whereas deceased Babukhan and Ranglal were sleeping out side of the hut on separate cots and that in the night at about 1.00, on hearing the cries of Ranglal, he awoke and from the inside the hut saw that four persons armed with lathis and farsi were beating Ranglal and Babu Khan. The witness also stated that one of the assailants had kept beard. This witness was declared hostile by the prosecution on the point of identification of the accused/appellant Basantilal. The witness also stated that one of the assailants had kept beard. This witness was declared hostile by the prosecution on the point of identification of the accused/appellant Basantilal. On being cross-examined by the Government Pleader in paragraph 6 of the cross-examination, he stated that one lantern was burning out side the hut and that in the light of the lantern he did not identify the accused Nana @ Basantilal and Hari Maharaj. The witness specifically stated that at the time of incident, he did not see Basantilal, at the same time, he stated that he only saw one of the assailants, who had kept beard. 11. Ranglal (PW 7) has stated in his statement that in the night of the incident at about 12.00 to 1.00, some persons came at the place of incident and inflicted blows on his head. The witness also stated that one of assailants had kept beard. He also stated that after the incident, when the assailants ran away from the place of incident, he fell unconscious. The witness also stated that he could not identify the assailants. 12. Ranglal (PW 7) was also declared hostile and was cross-examined on the basis of his statement, Ex. P/15. 13. In the cross-examination of Khadim Hussain (PW 6) and Ranglal (PW 7) no substantial facts were found on the basis of which it can be concluded definitely that present appellants Basantilal and Hari Maharaj were amongst the assailants, who inflicted injuries to Babu Khan and Ranglal WW 7). No doubt, it is true that in the cross-examination of these witnesses, certain facts were found on the basis of which suspicion can be attributed to the appellant, Hari Maharaj. The witnesses in their cross-examination have admitted that prior to the incident of 14.8.1987, some persons came at the hut at about 10.00 p.m. in the night and injured one Prabhulal with an axe. Injured Prabhulal lodged the report, Ex.P/28-A at Police Station Bhanpura of this incident, wherein it was stated that present appellant, Hari Maharaj was the person who inflicted axe blows to Prabhulal. 14. From the statements of Khadim Hussain (PW 6) and Ranglal (PW 7) it cannot be held beyond doubt that at the time of incident, present appellants were amongst the assailants who inflicted injuries to the deceased Babu Khan and Ranglal (PW 7). 15. 14. From the statements of Khadim Hussain (PW 6) and Ranglal (PW 7) it cannot be held beyond doubt that at the time of incident, present appellants were amongst the assailants who inflicted injuries to the deceased Babu Khan and Ranglal (PW 7). 15. As witnesses Khadim Hssain (PW 6) and Ranglal (PW 7) are declared hostile by the prosecution, the fact stated by the witnesses can only be believed when the facts stated by these witneses are corroborated from other independent evidence available on record. In AIR 1976 SC 980 ; Karuppana Thevar and Ors. v. The State of Tamil Nadu; the Apex Court has held as under: "A hostile witness may not be rejected outright but the Court has at least to be aware that prima facie, a witness who makes different statements at different times has no regard for truth. The Court should therefore be slow to act on the testimony of such a witness and, normally, it should look for corroboration to his evidence." Similar view as taken by the Supreme Court in AIR 1976 SC 202 ; Bhagwansingh v. State of Haryana; wherein it is held as under: "Where the Court gives permission to the Prosecutor to cross-examine his witness, thus characterising him as, a hostile witness, that fact does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence." 16. In view of the above principles as laid down by the Supreme Court, the facts stated by witnesses, Khadim Hussain (PW 6) and Ranglal (PW 7) can be used against the appellants only when the facts stated by witnesses get corroborated from other evidence available on record. 17. The other evidence against the present appellant is that deceased Babu Khan before his death gave statement before Sukhpal Singh (PW 5) in which he named the appellants as assailants and thereafter, when he was taken to Police Station, Bhanpura, he gave the statement before Investigating Officer, D.K. Jain (PW 22). The statement of the deceased recorded by Investigating Officer is Exh.P/14. In this statement also deceased, Babu Khan named the appellants as assailants. 18. The statement of the deceased recorded by Investigating Officer is Exh.P/14. In this statement also deceased, Babu Khan named the appellants as assailants. 18. No doubt, it is true that Sukhpalsingh (PW 5) in his statement, has stated that in the night of incident, on receiving information from Khadim Hussain (PW 6) when he reached the place of incident, he saw the deceased Babu Khan and Ranglal (PW 6) lying inside the hut they sustained injuries on their persons from which blood was oozing, at the same time, Babu Khan stated that he was badly beaten by the assailants. Babu Khan also stated to him that Hari Maharaj was one of the assailants to whom he recognized, whereas three other persons accompanying him were unknown to him. 19. D.K. Jain (PW 22) has also stated in his statement that on 17.8.1987 at about 4.50. in the morning deceased Babu Khan gave his statement with regard to the incident when Babu Khan was taken to Police Station, Bhanpura. In the statement, deceased Babu Khan had narrated the incident in detail and had also stated that at the time of incident, in the light of the lantern, he recognized Hari Shankar and Basantilal. According to the statement of Babu Khan, apellant Hari Shnakar was armed with Farsi whereas Basantilal and other unidentified appellants were armed with lathis. The statement (Exh. P/14) can be considered as evidence under section 32 of the Evidence Act but it is essential to see that how much reliance can be placed on the statement recorded by the Police Officer. The counsel for the appellants argued that the statement, Exh. P/14 cannot be relied on, as it is recorded by the Investigating Officer, D.K. Jain (PW 22) who is a Police Oficer, certain over writings and erases are found in the statement, Exh. P/14. It bears thumb impression of deceased Babu Khan, no explanation given for not taking his signature. In the statement deceased Babu Khan has stated that at the time of incident, appellant Harishankar was armed with Farsi and assaulted him. Dr. Verma (P. W. 4), who performed autopsy on the dead body of Babu Khan, in the Post mortem report has not stated that any incised wound was found on the body of the deceased. In the statement deceased Babu Khan has stated that at the time of incident, appellant Harishankar was armed with Farsi and assaulted him. Dr. Verma (P. W. 4), who performed autopsy on the dead body of Babu Khan, in the Post mortem report has not stated that any incised wound was found on the body of the deceased. Learned counsel also stated that it is not disputed that it was a dark night and only lantern was burning out side the hut. Ranglal (PW 7) in para 16 of his cross-examination has stated that lantern was lighted dim to avoid nuisance from insects. When Ranglal (P.W. 7) and Khadim Hussain (P.W. 6) could not identify any of the assailants in dim light of the lantern then the question arises as to whether deceased Babu Khan was in a position to identify the accused at the time of incident. Learned counsel also stated that in view of the injuries found on the head of the deceased whether he was in a position to give such detailed statement, Exh. P/14. The attesting witness of the statement, Exh. P/14, Khadim Hussain (PW 6) has stated that his signature was obtained on Exh. P/14 at Police Station on 17.8.1987 at about 12.00. in the noon. The witness specifically stated that the statement, Exh. P/14 of deceased Babu Khan was not recorded in his presence. Learned counsel in support of his contention has placed reliance on the decisions of the Apex Court reported in AIR 1974 SC 1936 ; Hallu v. State of M.P. and AIR 1981 SC 1578 ; Mohar Singh v. State of Punjab. 20. Considering the evidence and the facts emerged in the case on hand, with regard to the statement, Exh. P/14, we are of the view that there are circumstances found in the evidence of the prosecution, which make the statement doubtful and unreliable. In view of the injuries found on the head and other parts of the body of deceased Babu Khan it becomes doubtful that whether he was in a position to give such a detailed statement after about three hours of the incident, when the statement was recorded. In Mohar Singh's case (supra) the Supreme Court has held that: "We have, however, been taken through Ext. In Mohar Singh's case (supra) the Supreme Court has held that: "We have, however, been taken through Ext. P/-19 the statement of the deceased Kartar Singh and we find that he has given a very detailed and graphic narration of the entire history of the case, starting from the motive, the enmity and minutes features of the assault excluding the individual acts committed by the appellants. He has also mentioned that the appellants assaulted him with Kassi. The ocular evidence however is that the deceased was attacked not by Kassi but by spade. In view of the detailed and extremely coherent nature of the dying declaration, we find it impossible to believe that the deceased even if conscious would have made such a detailed statement." 21. On perusal of the statement of Dr. Verma (PW 4) and the facts stated in the post mortem, Exh. P/8, no incised wound was found on any part of the body of the deceased, Babu Khan whereas in Exh. P/14, deceased Babu Khan had stated that appellant Harishankar was armed with Farsi. In view of this also, the statement, Exh. P/14 has become doubtful. In Hallu's case (supra) the Apex Court has held that: "Normally when a witness says that an axe or a spear is used there is no warrant for supposing that what the witness means is that the blunt side of the weapon was used. If that be the implication it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp-edged or a piercing instrument was used as a blunt weapon." 22. In view of the aforesaid facts, the statement of Sukhpalsingh (PW 5) also becomes doubtful on the point that after the incident when he reached the spot, deceased Babu Khan verbally told him that Harishankar and Basantilal were amongst the assailants and they assaulted Babu Khan. It is pertinent to note that Sukhpalsingh (PW 5) in para 1 of his statement has stated that on receiving information about the incident from Khadim Hussain (PW 6) firstly, he went to Police Station, Bhanpura alongwith Khadim Hussain and lodged the report of the incident there and then alongwith one constable, he went to the spot by a truck. The prosecution has not filed alleged report lodged by Sukhpalsingh at Police Station, Bhanpura, as stated by him in his statement. The prosecution has not filed alleged report lodged by Sukhpalsingh at Police Station, Bhanpura, as stated by him in his statement. No explanation on behalf of the prosecution was submitted for not filing of the alleged report. This clearly shows that the prosecution has suppressed the said report for the reasons best known to them. This fact also makes the case of the prosecution suspicious and doubtful. From the evidence of the prosecution, utmost a suspicion can be attributed to the present appellants for having committed the offence charged against them but suspicion by itself, cannot take the place of proof and on mere suspicion, the accused cannot be held guilty for the offences charged against them. 23. In AIR 1975 SC 258 ; The State of Punjab v. Bhajan Singh; the Supreme Court has held that: "Suspicion against the accused-Suspicion, by itself however strong it may be is not sufficient to take place of proof and warrant a finding of guilt of accused." 24. In our considered opinion, in the present case utmost from the evidence of the prosecution a suspicion may be attributed to the appellants for committing the offence but in view of the settled principles of law, as stated above, the accused/appellants cannot be convicted for the offence charged against them merely on suspicion. The trial Court has convicted the accused persons on suspicion only and, therefore, the judgment of conviction and order of sentence, cannot be sustained and deserve to be set aside. 25. Consequently, all aforesaid three appeals are allowed. The conviction and sentence imposed against the appellants Harishankar and Nana @ Basantilal, are hereby set aside and they are acquitted from the offence charged against them. The appellants are on bail, their bail bonds stand discharged. Amount of fine be returned to the appellants, if deposited in the trial Court. 26. Copy of this Judgment be placed in connected Criminal Appeal No. 536/89 and 540/89.