JUDGMENT 1. - Being aggrieved by the judgment and order of conviction passed on 16.4.96 by the Sessions Judge, Sri Ganganagar in sessions case No. 63/94, this appeal is preferred by the accused-appellant on the ground mentioned in the memo of appeal. The appellant was convicted under Section 302 of the Indian Penal Code to suffer imprisonment for life as he was found guilty of having committed murder. 2. The prosecution story stated briefly is that on 26.8.91, the deceased along with his son and son-in-law went their field to change the water course as is usually done every Monday. After changing the water course at about 8.30 in the night, Kartar Singh with his brother-in-law returned to their house leaving the father in the field. While they were coming home at about 9.00 p.m., they saw Ajaib Singh the accused going towards his field with a Gandasi in his hand. When at about 1.30 in the night, the old man did not return home, the old lady of the house told Kartar Singh, the son-in-law and Angrez Singh her son to see why her husband has not returned home. Accordingly, they went to the field and found the deceased lying dead on cot in the field of the accused. They therefore, reported the matter to the Police and after investigation during which, the accused was arrested, challan was filed and the accused was prosecuted for committing murder of Tara Singh the deceased. The prosecution examined 8 witnesses in support of its case that Tara Singh was killed by the accused Ajaib Singh. 3. Of these witnesses, PW 2 Kartar Singh and PW 3 Harmender Singh are alleged eye-witnesses to the incident and have deposed to the same accordingly. PW 4 Photographer who proves the photographs of the dead body. PW 5 is Doctor who conducted the post mortem and proves homicidal death of Tara Singh. PW 6 is the Malkhana Incharge who proves the articles like Gandasi were duly sealed in his custody. PW 7 Police Constable who affected the arrest of accused. PW 8 is the Station House Officer who investigated the case. All over appreciation of this evidence, the learned Judge came to a conclusion of guilt and convicted the accused-appellant as aforesaid. It is against conviction that the present appeal is preferred. 4. PW 7 Police Constable who affected the arrest of accused. PW 8 is the Station House Officer who investigated the case. All over appreciation of this evidence, the learned Judge came to a conclusion of guilt and convicted the accused-appellant as aforesaid. It is against conviction that the present appeal is preferred. 4. The learned counsel for the appellant submitted that the entire prosecution story is false and fabricated. According to the learned counsel, the conviction is unsustainable in law as the intrinsic evidence as given by the prosecution disproves the entire prosecution story and therefore, the judgment of conviction is liable to be set aside. It was pointed out by the learned counsel that the entire deposition of PWs. 2 and 3 is with inherent intrinsic improbabilities and is, therefore, liable to be rejected. If the evidence of these two witnesses who claimed themselves to be eye-witnesses is rejected, there is nothing on record to connect the killing of the deceased Tara Singh to the accused, even if, the recovery of Gandasi is accepted as correct and true. He, therefore, prayed for setting aside the order and acquittal of the accused. 5. The learned Public Prosecutor claimed that the eye-witnesses PWs. 2 and 3 have spoken the truth and have been rightly believed by the learned Judge and came to the conclusion of guilt. According to the learned Judge, PWs. 2 and 3 saw the accused giving blows to the deceased whose homicidal death is proved by PW 5. The recovery of Gandasi is also duly proved by the witnesses. The Gandasi thus, belonged to the accused therefore, there is no reason to interfere with the order of conviction, even though certain irregularities or discrepancies may exist 6. PW 2 Kartar Singh is the son-in-law of the deceased Tara Singh and he had deposed that on the date of incident at about 6.30 O' Clock, he along with his father-in-law Tara Singh and brothers-in-law Harmender Singh and Angrez Singh went to the field for watering the field. He has very categorically stated that at about 8.07 in the evening of that day, they stopped the water supply to the field of accused Ajaib Singh and at 8.36 p.m. they devoted the water supply to the field of Santa Singh. He has very categorically stated that at about 8.07 in the evening of that day, they stopped the water supply to the field of accused Ajaib Singh and at 8.36 p.m. they devoted the water supply to the field of Santa Singh. After the watering arrangements were made, the witness and others were told by deceased Tara Singh that he would come home later on and they should proceed to home, They accordingly started going home, when they crossed the accused Ajaib Singh going towards his field with Gandasi in his hand. The witness though is very factually statement of time in relation to changing of water course, does not state the time even approximately when Ajaib Singh crossed them while going home. The witness' then deposes that when at about 1.30 in the night, Tara Singh did not come home, they i.e. Harmender Singh and Kartar Singh were told by the mother-in-law to find out why the father Tara Singh has not returned. The witness then states that he along with Harmender Singh went towards the field and when they reached at about 2 O' clock, they saw the accused assaulting the deceased with gandasi, where the father was iying on his bed in the field of the accused. It would be necessary to note what the witness has stated in ocular testimony. " djhc nks cts tc ge [ksr esa igqWaps rks ns[kk fd vtk;c flag ekStwnk vnkyr eqfYte esjs llqj dks vius [ksr esa pkjikbZ ij iM+s gqos dh xaMkls ls pksVsa ekj jgk Fkk geus jksyk fd;k rks og xaMklk ysdj ugj dh rjQ Hkkx x;k geus ikl tkdj ns[kk rks rkjk flag flld jgk Fkk gekjs ns[krs&ns[krs ej x;k rkjk flag ds flj] xnZu Vkax ij pksVsa yxh gqbZ FkhA " From the body punchnama, it is found that the body was discovered lying in the field of Ajaib Singh and accordingly the words "APNE KHET MAIN CHARPAEE PER PADE HUVE KO." would mean that Ajaib Singh assaulted Tara Singh who was lying on a bed in the field of Ajaib Singh which raises a serious question as to why deceased Tara Singh chose to take his bed into the field of Ajaib Singh and sleep, awaiting to be killed by Ajaib Singh. If the words "APNE KHET MAIN CHARPEE PER PADE HUVE KO" are to mean that Tara Singh when assaulted was lying in his own field. There is no evidence on record to show that after death, the body with cot was dragged or lifted and taken into the field of Ajaib Singh, where it was found. The witness states however, that he saw Ajaib Singh hitting Tara Singh. 7. The next witness is PW 3 Harmender Singh S/o Tara Singh the deceased. This witness deposes to the incident and also states that the water course to the field of accused was discontinued at 8.36 p.m. and therefore, they returned home. He then states that his mother at about 1.30 in the night told him and his brother-in-law PW 2 to find out why Tara Singh has not returned home. Then they saw when they reached in the field that Ajaib Singh the accused was hitting Tara Singh the deceased by Gandasi in his field [which would again 'his' means Ajaib Singh's field]. The witness then says that because of fear, they did not go to the Police Station to lodge the first information report. This witness has admitted in his cross-examination that near the bed where Tara Singh was lying, foot marks of three different persons were visible. He states thus : " pkjikbZ ds ikl vkneh ds [kkst Fks eq>s ;g irk ugha fd Fkkusnkj us [kkst mBk;s ;k ughaA tks ekpk iM+k Fkk ekpk Hkh gekjk Fkk ftl ij esjk firk ejk iM+k FkkA " It will thus be seen that two eye-witnesses saw the accused Ajaib Singh going to his field at about 9.00 p.m. with a Gandasi and saw him giving Gandasi belows to deceased Tara Singh lying on the cot at about 2.00 p.m. in the field of Ajaib Singh the accused. There is no explanation coming forward as to why Tara Singh was sleeping on his own cot in the field of Ajaib Singh then glowering discrepancy in the prosecution evidence is not a solitary discrepancy. The son PW 3 has admitted that around the bed or cot three foot prints of different people were visible. There is no explanation coming forward as to how foot prints occurred and there is no explanation as to how the dead body was recovered from the field of Ajaib Singh. The son PW 3 has admitted that around the bed or cot three foot prints of different people were visible. There is no explanation coming forward as to how foot prints occurred and there is no explanation as to how the dead body was recovered from the field of Ajaib Singh. There is also no explanation of the circumstances in which deceased Tara Singh was prompted to go and sleep in the field of Ajaib Singh. It is impossible to believe that a man lifted the cot with or without Tara Singh and hacked him after waiting for his sons to be there on the spot as eye-witness. If Ajaib Singh wanted to kill Tara Singh, he could have done so, immediately after PWs. 2 and 3 left the field, he could have done so in the field of Tara Singh himself. These important circumstances therefore, create a very serious doubt as to whether the prosecution story as narrated by PWs. 2 and 3 is probable. 8. PW 5 the Doctor who proves homicidal death of Tara Singh states in his examination as under, " ;g lgh gS fd 26-8-91 jkr ds 9 cts Hkh e`rd dh e`R;q gksuk lEHko gSA ftl izdkj dh e`rd ds 'kjhj ij pksVsa vkbZ gSa] mudks ns[krs gq;s bu pksVksa ds yxus ds vf/kd ls vf/kd 5 feuV ds vUnj gj gkykr esa e`R;q gksuk lEHko gSA " 9. The Doctor therefore, does not rule out the possibility of death having been caused at 9.00 p.m. If this what is accepted as correct, the deposition of PW 2 and 3 that they saw the accused giving death blow to the deceased at 2.00 p.m., five hours thereafter is unbelievable, their statement appears to be after thought and they are not eye-witnesses to the real incident.The doctor has also deposed as under, " e`rd ds isV esa [kkus esa ns[kh gqbZ fLFkfr dks ns[krs gq,s dks eSa dg ldrk gwWa fd e`R;q ls iwoZ 3 ls 5 ?k.Vs iwoZ dk [kkuk [kk;k gqvk gSA " Which would mean that Tara Singh the deceased consumed food at about 9.00 p.m. There is however, no evidence on record of any kind to show that Tara Singh consumed food in the field. It is also possible that he had consumed food at his house itself and then left for watering the field, in which case the food could have been consumed about three hours prior to 9.00 p.m. and death is caused around 9.00 p.m. as is deposed to be possible by the Doctor. The existence of this possibility, therefore, create another serious doubt in the story of the prosecution as narrated by PWs. 2 and 3. In such circumstances, we find it difficult to believe the testimony of PWs. 2 and 3 as wholly truthful. If that evidence is rejected, the prosecution story false to the ground completely. 10. We are also unable to uphold the conviction for the reasons that there is no sufficient evidence regarding recovery of the Gandasi and its connection with the accused. The Gandasi may be belonged to the accused aid has been found in the 'KOTHA' of the accused which was open. The fact that Gandasi of the accused was either in the 'KOTHA' or in the field cannot be over-ruled nor can be ignored but at the same time the fact of the Gandasi of the accused being used by some one else in causing death of Tara Singh and throwing the Gandasi in the 'KOTHA' also cannot be over-ruled particularly when the body of the deceased found in the field of Ajaib Singh and three different foot prints were found around it giving rise to possibility yet that the deceased was killed in his own field by some one using the Gandasi of the accused and then the body was lifted with the cot and put in the field of Ajaib Singh and the Gandasi Thrown in the 'KOTHA' of the Ajaib Singh to put the entire needle of suspension towards the accused. The circumstances as deposed by the witnesses and the discovery of Gandasi even if it is accepted, a plausible explanation inconsistent with the guilt of the accused is, therefore, coming forward. In such circumstances, we find it unsafe to convict the accused. We, therefore, set aside the judgment of conviction as recorded by the learned Judge as he could have seen these infirmities in the prosecution.In the result, the appeal succeeds and is allowed. The accused is acquitted of the offence with which he is charged. He be so released, if not required for any other offence.Appeal Allowed. *******