Honble YADAV, J.–The present Jail Appeal has been preferred by accused-appellant Thavra through Superintendent, Central Jail, Udaipur against the impugned judgment dated 16.4.96 passed by learned Additional Sessions Judge No.1, Udaipur whereby he convicted accused-appellant Thavra for the offence under Sec.302 IPC and sentenced him for life imprisonment. Accused Bakshi and Dheera were convicted under Sec.323 IPC and sentenced to one year rigorous imprisonment whereas Kantilal arrayed as accused No.4 in the aforesaid Sessions Case No. 17/1994 was acquitted. (2). It is noticed that Bakshi and Dheera who were arrayed as accused Nos. 1 and 3 in the aforesaid Sessions Case and were convicted for the offence under Section 323 IPC to one years rigorous imprisonment have not filed any appeal before this Court. (3). The prosecution story as disclosed in the FIR Ex. P/8 registered under Sections 341, 323, 324 read with Sec.34 IPC on the oral statement of Shanti Lal (PW 5) at police station Pahara Dist. Udaipur on 12.3.92 at 12.30 PM was that first infor- mant above named along with deceased Babulal and Kauwa (PW 6) on 11.3.92 after sun-set proceeded from village Bavalwada on foot to their village Harshawada. When all of them reached at about 8.30 PM at the place known as Bada Darra they saw four accused persons named above coming with two camels loaded with bundles of woods. Complainant party questioned four accused persons as to where they were taking boundles of woods? When the aforesaid question was asked by complainant party to accused-appellant Thavra and Dheera they retorted their authority to ask such question from them. (4). Upon the aforesaid altercation, it is alleged that accused- appellant Thavra assaulted deceased Babulal with an axe which he was carrying. Accused Bakshi assaulted deceased Babulal by throwing stones at him and accused Dheera assaulted the deceased with `lathi whereas accused Kantilal blocked the way of complainant party by not allowing them to proceed to their village Harshawada. (5). After lodging of the FIR (Ex.P/8), Investigation commenced. During the investigation Babulal died in hospital at Ahmedabad on 15.3.92 and as such the case was converted under Sec.302 IPC. (6). After conclusion of investigation, the Investigation Agency filed challan against accused-appellant and other three accused persons named above before the committal Court from where the case was committed to the Court of Sessions, Udaipur. During the investigation Babulal died in hospital at Ahmedabad on 15.3.92 and as such the case was converted under Sec.302 IPC. (6). After conclusion of investigation, the Investigation Agency filed challan against accused-appellant and other three accused persons named above before the committal Court from where the case was committed to the Court of Sessions, Udaipur. The learned Sessions Judge transferred the case for trial to the Court of Additional Sessions Judge No.1, Udaipur. (7). The learned Additional Sessions Judge No.1, Udaipur after receipt of record from the learned Sessions Judge framed charges against accused appellant and other three accused persons named above. (8). Accused-appellant and three other accused persons named above denied the charges framed against them and claimed trial. (9). In order to substantiate the prosecution case, the Prosecution Agency examined as many as 20 witnesses and produced documentary evidence Ex.P1 to Ex.P16. (10). It is borne out from perusal of record requisitioned from learned trial Court that when Prosecution Agency closed its evidence, the accused-appellant and other three accused persons named above were called upon by learned Additional Sessions Judge to give their statement under Sec.313 Cr.P.C. The accu- sed-appellant and other three accused persons gave identical statements under Sec. 313 Cr.P.C. to the effect that Shanti Lal (PW 5) and Kauwa (Pw 6), in order to save themselves from the punishment for committing murder of deceased Babulal, have falsely implicated them. Accused-appellant and other three accused persons examined Heera Lal in their defence as DW 1. (11). After hearing the learned public prosecutor and learned defence counsel on behalf of accused-appellant and other accused persons named above, the learned Additional Sessions Judge on the strength of evidence adduced by the Prosecution convicted and sentenced the accused persons as stated hereinabove. (12). A close scrutiny of the judgment impugned rendered by learned trial Court reveals that it consists of two kinds of findings. One kind of finding relates to homicidal death of deceased Babulal which is based on the independent testimonial value of PW 1 Dr. Abhimanyu Kumar PW 19 Dr. G.G. Kothari, injury report (Ex.P1) prepared by PW1 at Doongarpur General Hospital on 12.3.92 at 2.30 PM and post mortem report (Ex.P15) conducted by PW 19 whereas other kind of finding relates to the guilt of accused- appellant and other accused persons named above. From perusal of statement of PW 1 Dr. Abhimanyu Kumar PW 19 Dr. G.G. Kothari, injury report (Ex.P1) prepared by PW1 at Doongarpur General Hospital on 12.3.92 at 2.30 PM and post mortem report (Ex.P15) conducted by PW 19 whereas other kind of finding relates to the guilt of accused- appellant and other accused persons named above. From perusal of statement of PW 1 Dr. Abhimanyu Kumar and from statement of P.W. 19 Dr. G.G. Kothari it is easily deducible that death of deceased Babulal was homicidal caused due to head injury No. 1 by blunt weapon. PW 19 Dr. G.G. Kothari has categorically stated on oath that head injury No.1 caused to deceased Babulal was sufficient in ordinary course of nature to cause his death. The ocular testimonies of PW 1 and PW 19 are fully corroborated from injury report (Ex.P1) and post mortem report (Ex.P15). (13). The learned Amicus Curiae candidly admitted before us that there is no scope to challenge the aforesaid finding of homicidal death of deceased Babulal recorded by learned Additional Sessions Judge on the basis of statements of PW 1 Dr. Abhimanyu Kumar and Dr. G.G. Kothari (PW 19) corroborated from Ex.P 1 injury report and Ex.15 post mortem report. It is submitted by learned Amicus Curiae that even if the aforesaid finding recorded by learned trial Court relating to homicidal death of deceased Babulal is accepted even then the core dominating ques- tion which deserves to be determined in the instant case would be who caused the homicidal death of deceased Babulal ? It is urged by learned Amicus Curiae that the learned trial Court has based its finding of guilt against the accused-appellant and other three accused persons on eye-witnesses account given by eye witnesses (PW5 and PW6) in their statements together with the recovery of axe at the instan- ce of accused-appellant Thavra and recovery of lathi at the instance of accused Dheera which are not sustainable in the eye of law and fact. (14). It is further urged by learned Amicus Curiae that suspicion cannot be allowed to take place of evidence. The prosecution is required to establish guilt of an accused by adducing unimpeachable legal evidence to the satisfaction of the Court beyond reasonable doubt whereas the learned Public Prosecutor supported the findings of fact recorded by learned trial Court. (14). It is further urged by learned Amicus Curiae that suspicion cannot be allowed to take place of evidence. The prosecution is required to establish guilt of an accused by adducing unimpeachable legal evidence to the satisfaction of the Court beyond reasonable doubt whereas the learned Public Prosecutor supported the findings of fact recorded by learned trial Court. It is submitted by learned Public Prosecutor that both the aforesaid findings of fact recorded by learned Sessions Judge in the present case are based on legal evidence which are liable to be affir- med by this Court in appeal. (15). We have heard the learned Amicus Curiae Shri K.K. Shah and learned Public Prosecutor at length. We have also gone through the record requisitioned from the learned trial Court. (16). In our considered opinion there are weighty and formidable reasons to discard the ocular testimonies of PW5 and PW6 who claimed themselves to be eye-witnesses. In the present case there are deficiencies, drawbacks and infirmities in the statements of witnesses PW 5 and PW 6 going to the root of the case, leading towards an irresistible conclusion that their statements are unworthy of belief. The learned trial Court has committed error in evaluating the ocular testimo- nies of these two eye witnesses which is not acceptable to us for the reasons given herein below. (17). It is stated by PW 5 that when accused persons started to assault deceased Babulal, he shouted and hearing his shouts 20 persons including Manji, Khatu, Roopa and Heera arrived on the scene of occurrence. He expressed his ig- norance about the names of rest of the persons assembled on the scene of occurrence except the persons named above. Whereas according to PW 6 Kauwa, who claimed himself to be present on the spot alongwith PW 5 stated on oath that he and PW 5 made attempts to raise shouts but no one came there in the night after hearing their shouts. It is also stated by PW 6 that he went to the house of Manji to call him but he refused to come on the spot whereas PW 5 Shanti Lal has stated that after hearing his shouts Manji came on the spot immediately after occurrence in the night. (18). It is also stated by PW 6 that he went to the house of Manji to call him but he refused to come on the spot whereas PW 5 Shanti Lal has stated that after hearing his shouts Manji came on the spot immediately after occurrence in the night. (18). It is stated by PW 6 that all the four accused persons armed with axes continued to keep them under wrongful confinement from the time of occurrence i.e. 11.3.92 at 8.30 PM up to morning of 12.3.92. He also stated that the accused persons did not allow them to move from the place of occurrence but they did not raise any objection of his going to his village from the place of occurrence. It is further stated by PW 6 that accused persons did not raise objection of his going to the house of Shankar Lal and Kachru Lal to make arrangement for conveyance to take Babulal to hospital. It is admitted by PW 6 as stated above that he had gone to the house of Manji to seek his assistance but he refused to come on the spot in the night to avoid his implication in the case. The aforesaid statement did not find place in the statement given by PW 6 before the Investigating Officer under Sec. 161 Cr.P.C. He was confronted by the defence counsel but he failed to give a satisfactory explanation except stating that he has so stated before the Investigating Officer (PW 11). The Investigating Officer (PW 11) has not supported the statement of PW 6 on this point. PW 11 Padam Singh, Investigating Officer stated on oath that what Kauwa has stated before him, he has recorded the same. It is further stated by PW 11 that he has not omitted anything what Kauwa (PW6) has stated before him. (19). From the statement of PW 7 Lala, father of deceased Babulal it is evident that his village Harshawada is only 50 to 60 yards from the place of occurrence but no attempt was made either by PW 5 or by PW 6 to inform family members of deceased Babulal. (19). From the statement of PW 7 Lala, father of deceased Babulal it is evident that his village Harshawada is only 50 to 60 yards from the place of occurrence but no attempt was made either by PW 5 or by PW 6 to inform family members of deceased Babulal. It is further borne out from the statement of PW 7 Lala that when he reached to his house at 10 AM from his sisters house he found PW 5 and PW6 sitting at his house but they did not disclose the names of accused persons nor they have disclosed how the occurrence took place. It is also stated by PW 7 Lala that PW 5 and PW 6 did not disclose him from where they were coming at the time of occurrence or for which work they had gone outside the village with the deceased Babu Lal. From the aforesaid statement on oath of PW 7 Lala, father of deceased, the statements of PW 5 and PW 6 do not inspire our confidence. It is mystery why PW 5 Shanti Lal and PW 6 Kauwa did not disclose the names of the accused persons to the father of deceased Babulal (PW7) when they met him at his house on 12.3.92 in first opportunity. It is not understandable as to why PW 5 and PW 6 did not disclose to PW7, father of deceased Lala for which work both of them with deceased Babu Lal had gone outside their village Harshawada. It is further not understandable as to why PW 5 and PW 6 did not disclose the manner of Marpeet to PW 7, father of deceased. (20). The learned Additional Sessions Judge has pointed out in his judgment impugned regarding suspicious conduct of PW 5 and PW 6, remaining present on the scene of occurrence from 8.30 PM up to the morning of 12.3.92 without making an effort to seek assistance of the villagers living in the vicinity of the place of occurrence. Failure of PW 5 and PW 6 to inform to the family members of deceased Babulal at their house in the night of 11.3.92 which was only 50 to 60 yards from the place of occurrence make their conduct most unnatural. Failure of PW 5 and PW 6 to inform to the family members of deceased Babulal at their house in the night of 11.3.92 which was only 50 to 60 yards from the place of occurrence make their conduct most unnatural. The tenor and conduct of PW 5 and PW 6 at the time of incident and after the incident has telling effect on the merit of their testimonial value indicating towards the fact that they are making conscious attempt to conceal the genesis of the Marpeet. It is highly improbable to visualise that three accused persons were beating only deceased Babulal and one accused person was blocking their way without causing any injury to PW 5 and PW 6 who also entered altercation with accused persons which continued for half an hour. From the statements of PW 5 and PW 6 it appear as if all the accused persons were taking all precaution to avoid injuries to PW 5 and PW 6. It is further evident from scrutiny of statements of PW 5 and PW 6 that both of them were taking all precaution that their cloth which they were wearing at the time of occurrence may not become blood stained to avoid chance of their false implication in the case although both PW 5 and PW 6 are closely related to deceased Babu Lal as they belong to the same pedigree. (21). It is stated by PW 5 that he did not know accused-appellant and other three accused persons from before which is not believable looking to the fact that PW 5, PW 6, deceased Babu Lal and accused persons all belonged to the same village Harshawada as held by the learned trial Court. The learned Sessions Judge has noticed the aforesaid suspicious conduct of PW 5 and PW 6 in his judgment yet without giving any cogent and convincing reasons, reached to a conclusion that prosecution has succeeded to establish its case beyond all shadow of doubt is not acceptable to us. (22). From the aforesaid discussion we are satisfied that the statements given by aforesaid eye witnesses are unworthy of belief and the learned trial Court has committed error in placing reliance on the statements of PW 5 and PW 6. (23). (22). From the aforesaid discussion we are satisfied that the statements given by aforesaid eye witnesses are unworthy of belief and the learned trial Court has committed error in placing reliance on the statements of PW 5 and PW 6. (23). It is next contented by learned Amicus Curiae that the learned Additional Sessions Judge has committed error in placing reliance on the recovery of axe at the instance of accused-appellant Thavra vide recovery memo (Ex.P/10) and the recovery of lathi at the instance of accused Dheera vide recovery memo (Ex.P/11). It is urged by learned Amicus Curiae that recovery of axe and lathi have been made from the open places accessible to all therefore these recoveries alleged to have been made at the instance of accused-appellant Thavra and accused Dheera cannot said to be legal evidence for convicting the aforesaid accused persons. (24). There is substance in the aforesaid argument of learned Amicus Curiae. There is no tangible evidence to show that the recovered article axe or lathi from accused-appellant Thavra and accused Dheera were blood-stained. The Prosecution Agency has not sent these two alleged weapons of assault to State Forensic Science Laboratory, Jaipur for its Sereological examination therefore it cannot be said that these weapons of assault were used in the crime. This Court takes judicial notice of the fact that axe and lathi are usually kept by people of Rajasthan as their household articles especially in tribal regions of the State. We are of the view that the recovery of aforesaid articles from open places and the piece of evidence relating to these recoveries of axe and lathi vide Ex.P/10 and P/11 is not at all worth acceptance. The recovery of these articles from open place is borne out from the statement of Motbir witness Lala (PW10). (25). It is shocking to note that the learned trial Court did not care to read the statement of only Motbir witness PW 10 Lala produced by prosecution to prove the alleged recovery of axe and lathi on pointing out of accused Thavra and Dheera on the basis of information memos (Ex.P/13 and Ex.P/14). (25). It is shocking to note that the learned trial Court did not care to read the statement of only Motbir witness PW 10 Lala produced by prosecution to prove the alleged recovery of axe and lathi on pointing out of accused Thavra and Dheera on the basis of information memos (Ex.P/13 and Ex.P/14). A careful reading of the statement of Motbir witness PW 10 throws a flood of light that recoveries under Section 27 of Evidence Act have been made from the houses of accused persons Dheera and Bakshi and not from the houses of Thavna and Dheera as mentioned in recovery memos (Ex.P/10 and Ex.P/11). No recovery has been made by Investigating Officer (PW 11) Padam Singh from the house of Bakshi under Section 27 of the Evidence Act. It is important to mention here that Motbir witness PW 10 Lala has not stated what was recovered from the house of Dheera and what was recovered from the house of Bakshi at their instance under Section 27 of the Evidence Act. It is stated by PW 10 Lala that one axe and one lathi was recovered from the houses of Dheera and Bakshi. The aforesaid statement of PW 10 is wholly inconsistent with two information memos Ex.P 13 and Ex.P 14 and also falsify the two recovery memos Ex.P 10 and Ex.P 11 and run counter to the statement of Investigating Officer Padam Singh (PW11). (26). The bottomline argument of learned Amicus Curiae is that in the present case there is delay of 16 hours in lodging the FIR (Ex.P/8) although the police station was only 8 kilometers away from the place of occurrence. It is urged in this connection by learned Amicus Curiae that there is no explanation whatsoever relating 16 hours delay in lodging the FIR (Ex.P/8) on 12.3.92 at 12.30 PM whereas the occurrence took place on 11.3.92 at 8.30 PM. According to learned Amicus Curiae long and unexplained delay of 16 hours in lodging the FIR creates a strong suspicious circumstances leading to concoction of the prosecution story by PW 5 and PW 6 after deliberations which is fatal to the prosecution in the instant case. (27). We have no hesitation to hold that 16 hours unexplained delay in lodging the FIR (Ex.P/8) in the present case is undoubtedly an important circumstance which is not properly evaluated by the learned trial Court. (27). We have no hesitation to hold that 16 hours unexplained delay in lodging the FIR (Ex.P/8) in the present case is undoubtedly an important circumstance which is not properly evaluated by the learned trial Court. In our opinion unexplai- ned 16 hours delay in lodging the FIR by PW 5 Shanti Lal leads towards an irresistible conclusion that FIR (Ex.P/8) was lodged after due deliberations. The conduct of PW 5 and PW 6 at the time of occurrence and after the occurrence as discussed hereinabove goes to show that possibility of correctness of the defence taken by accused appellant and other accused persons in their statement under Section 313 Cr.P.C. cannot be Ruled out. (28). We have examined the statement of DW 1 Heera, examined by accused-appellant and other accused persons in their defence. The statement of Heera (DW1) consists of only two lines. In first line he has stated that he know Babulal Son of Lala from before. In the second line he has stated that within a period of th- ree years he never saw Babulal lying anywhere. DW 1 Heera was not rightly subjected to cross examination by prosecution. In our opinion, the learned trial Court has committed no error in rejecting the statement of DW 1 Heera. (29). The learned Public Prosecutor vehemently emphasised that as the accused-appellant failed to prove their defence by producing Heera (DW1), hence the prosecution story should be believed. The Public Prosecutor invited our attention towards Section 105 of the Indian Evidence Act which provides that when a person is accused of any offence, the burden of proving the existence of circumstances, bringing the case within any of the General Exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the same code or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances if accused failed to establish on whom such charges are fastened. (30). The argument raised by learned Public Prosecutor is not acceptable to us because the accused appellant or any other accused persons in the present case are not claiming benefit of the General Exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of same Code or in any law defining the offence. The argument raised by learned Public Prosecutor is not acceptable to us because the accused appellant or any other accused persons in the present case are not claiming benefit of the General Exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of same Code or in any law defining the offence. The burden of proof remains intact on the pro- secution. The prosecution must stand on its own legs and it cannot of be allowed to take advantage of the weaknesses of the defence nor the Court on its own motion make it a new case for the prosecution and convict the accused on that basis. It is held that the burden of proof is always remain intact on the prosecution to prove the entire case at the trial and the prosecution could not be allowed to fill the gaps and lacunae left at the trial at the appellate or at the revisional stage. The falsity of defence adduced by accused cannot take place of legal evidence of fact which the prosecution has to establish in order to succeed. It is true that a false plea by defence can at the best be considered as an additional circumstance if other circumstances indicate towards the guilt of the accused which is lacking in the pre- sent case. Instead we hold that the accused-appellant and other accused persons are innocent and there is substance in their defence version which they have pleaded before the trial Court under Section 313 Cr.P.C. (31). The learned trial Court has committed error in convicting and sentencing the accused-appellant Thavra and two other accused persons namely Bakshi and Dheera who are not before this Court as they have already undergone one year rigorous imprisonment imposed upon them under Section 323 IPC. We are of the view that although accused Bakshi and Dheera have not preferred any appeal before this Court but as we are fully satisfied that the evidence against Bakshi and Dheera is not at all satisfactory hence we feel that they are also entitled to the same benefit as is being given to accused-appellant Thavra by setting aside the finding of guilt recorded by learned trial Court against him. Therefore, we also set aside the conviction of Bakshi and Dheera under Sec.323 IPC and the sentence imposed upon them. (32). Therefore, we also set aside the conviction of Bakshi and Dheera under Sec.323 IPC and the sentence imposed upon them. (32). The upshot of the aforesaid discussion is that the judgment impugned dated 16.4.1996 is set aside and the instant Jail Appeal filed by accused-appellant Thavra through Superintendent Central Jail, Udaipur is allowed. The accused-appellant Thavra is ordered to be released from Jail forthwith unless his detention is warranted in some other case. Conviction and sentence of accused Bakshi and Dheera is also set aside though they have not preferred any appeal before this Court. _