Judgment V.G. Palshikar, J.-Being aggrieved by the Judgment and order of conviction passed by the learned Addl. Sessions Judge, Phalodi in Sessions Case No. 10/95 on 28-9-96, the appellant named above has preferred this appeal on the ground mentioned in the memo of appeal. 2. Facts giving rise to this appeal stated briefly are that on 24-12-94 in the night intervening between 23rd and 24th of December, 1994, one Bhagirath was found assaulted and dead and therefore, police were called. The first information report No. 98/94 was registered in relation to this happening on 24-12-94 itself and investigation commenced. 3. Thereafter, the police came on site and sent the dead body for post-mortem which was conducted on 24-12-94 itself It was opined by the Doctor performing the post-mortem that death of Bhagirath was caused due to severe bleeding through the injuries caused to him on the head and stomach. On the same day, therefore, the dead body was handed over to Bhoja Ram, the father of the deceased by the police. No arrest was effected in pursuance to the first information report No. 98/94. 4. However, 3 1-12-94, a written first information report was lodged by one Dhopi wife of Bhag Chand stating that her son Bhoja Ram assaulted his son Bhagirath by means of stone and knife causing injury which resulted in death of Bhagirath. She therefore, prayed for appropriate action being taken against her son Bhoja Ram. This information was registered as first information report No. 99/94. Investigation was thereafter taken up on the basis of first information report and then Bhoja Ram was arrested. Certain prove its case that Bhoja Ram committed murder of Bhagirath. 5. On appreciation of the oral and documentary evidence as was presented by the prosecution, learned Add). Sessions Judge, Phalodi came to a conclusion that the accused was guilty of murdering his son Bhagirath. He therefore, proceeded to sentence him to suffer imprisonment for life. It is this Judgment and order of conviction and sentence that this appeal is preferred on the ground mentioned in the memo of appeal. The learned Counsel for the accused submitted that the order of conviction is unsustainable in law. There is absolute evidence on record to show that the accused was the person who killed Bhagirath. It is this Judgment and order of conviction and sentence that this appeal is preferred on the ground mentioned in the memo of appeal. The learned Counsel for the accused submitted that the order of conviction is unsustainable in law. There is absolute evidence on record to show that the accused was the person who killed Bhagirath. With the assistance of the learned Counsel for the accused and the learned Public Prosecutor, we have scrutinized the record and reappreciated the evidence as deposed to by 19 witnesses of the prosecution. .6. PW. 1 Bharmal Ram has stated that on hearing commotion from the house of Bhoja Ram, he went towards the hamlet of Bhoma Ram where he found Bhagirath lying in pool of blood and was suffering agony due to .injury in his head and stomach, then the witness asked Bhoja Ram as to how these injuries were caused to Bhagirath, on which, Bhoja Ram is set to have told the witness that Balwanta, Kana and Magna etc. had assaulted his son. Thereafter, during the presence of the witness, the police appeared on the scene of offence and prepared panchnama which is exhibited as P/1. They also prepared panchnama Ex. P12. According to the deposition of this witness, therefore, police came on the scene of offence on 24-12-94 itself and the post-mortem as will be seen hereafter, conducted on the same day and the body of Bhagirath was returned to accused Bhoja Ram on the same day. Bhoja Ram was thus, present before the police but there was no complaint made at that time against the Bhoja Ram by any person and he was therefore, not arrested by the police. From the evidence of P.W.I therefore, it is obvious that a report regarding assault and death of Bhagirath was already lodged on 24-12-94 itself and nothing was disclosed to police at that time regarding involvement of Bhoja Ram. 7. PW. 2 Balwanta Ram is the brother of accused Bhoja Ram. Admittedly, there was dispute between the brothers as has been deposed to by the witness. This witness has stated in the Court that in the morning of 24-12-94 at about 6.30 a.m. when he awakened up, he heard cries from the hutment, he therefore, went there to see as to what happened. He saw Bhoja Ram standing in front of his hut with a lathi in hand. This witness has stated in the Court that in the morning of 24-12-94 at about 6.30 a.m. when he awakened up, he heard cries from the hutment, he therefore, went there to see as to what happened. He saw Bhoja Ram standing in front of his hut with a lathi in hand. He then deposes that he heard thereafter that Bhoja Ram killed his son Bhagirath. The witness then stated that Bhoja Ram killed his son so as to implicate his brothers i.e. the witness & Ors. in the case of taking “Oonth-Ka-Gada”. The deposition of this witness thus proves that at about 6.30 am. when he went to the scene of offence, Bhoja Ram was standing with a lathi in hand and the dead body of the deceased Bhagirath was not lying there. 8. PW. 3 Hema Ram is the next witness who also went to the scene of offence in the morning after hearing the cries of Bhoja Ram. On reaching the site, he saw Bhoja Ram standing with a lathi in hand and he was told by Dhopi mother of Bhoja Ram that Bhoja Ram had killed his son (Bhagirath). According to this witness therefore, he was told at that very early in the morning by Dhopi that the deceased Bhagirath was killed by his father Bhoja Ram and yet the witness did not report the matter to the police. It is also clear from the evidence of this witness that at that time at about 6.30 in the morning dead body of Bhagirath was not lying there. 9. PW. 4 Beenja Ram is another witness who says that he heard that Bhoja Ram killed his son after seven days of happening. PW. 5 Kana Ram has stated that in the night of 23-12-94, he, Balwanta Ram Magna, Hema and Baxa Ram were asked to bring “Oonth-Ka-Gada” to the house of Bhagchand father of the witness. He then deposes that in the morning of 24-12-94, he heard commotion from the side of Bhoja Ram’s house and went to see what happened there. He saw the accused Bhoja Ram standing with a lathi and the wife of Bhoja Ram crying. The witness then deposes that thereafter, police came there and he then says that he heard that Bhagirath was killed by Bhoja Ram. He saw the accused Bhoja Ram standing with a lathi and the wife of Bhoja Ram crying. The witness then deposes that thereafter, police came there and he then says that he heard that Bhagirath was killed by Bhoja Ram. This witness also does not state that at that time, the body of deceased was lying there. He however, talks of police coming there. 10. PW. 6 Magna Ram is another brother of Balwanta Ram who deposes almost in the same way as Balwanta Ram did. All that he deposed to in relation to the killing of Bhagirath is that he heard from Jagannath that Bhagirath was killed by Bhoja Ram. This witness also however, deposed to taking away “Oonth-ka-Gada” in the night of 23-12-94. 11. PW. 7 Bhakarram has an entirely different story to say. He has deposed that in the morning of 24-12-94, he heard cries from the side of the house of Bhagchand, when he went there to find out what has happened, he saw little away that Bhagirath was lying, his stomach was cut and Bhoja Ram and his wife were crying sitting nearby. When Bhoja Ram saw the witness, he asked the witness to sit there. The witness declined to do so and state that he will report the matter to the police. Accordingly, the witness went to the house of Heera Ram and then went to Bhojasar Police Station to report the matter. In the cross-examination, this witness slates that when he so went near Bhoja Ram, he saw Dhopi mother of Bhoja Ram standing little away from the house and the witness has deposed that on being asked as to who hit Bhagirath, Bhoja Ram told him that Bhagirath was hit by his enemies. It will thus be seen from the deposition of this witness that an information was lodged with the police on 24-12-94 itself regarding murderous assault on Bhagirath. .12. PW. 8 Gopi Ram. This witness states that two hours after sunrise on 24-12-94 when he went to the field of Bharmal Ram, he saw Bharmal Ram (PW. 1) standing in his field and he told him that from the hut of Bhoja Ram, cries are being heard. .12. PW. 8 Gopi Ram. This witness states that two hours after sunrise on 24-12-94 when he went to the field of Bharmal Ram, he saw Bharmal Ram (PW. 1) standing in his field and he told him that from the hut of Bhoja Ram, cries are being heard. On such information, both Gopi ram and Bharmal Ram went to (he hut of Bhoja Ram, where they found Bhoja Ram crying and saw the son of Bhoja Ram lying that his intestine were protruding out from his stomach, he was alive. The witness therefore was asked by Bharmal Ram to cover the injury and they thereafter left. The deposition of this witness is worth noting when he says that: “BHOJA RAM RO RAHA THA AUR KAHA RAHA THA USNE MAR DIYA USNE MAR DIYA.” The witness has been contradicted with his oral statement made to the police in relation to his being told that Bhagirath was assaulted by Kania, Balwanta Ram and Magna Ram. The witness however, denied to have said so to the police. It appears from the deposition of this witness that till after two hours from sunrise on that day i.e. 24-12-94, the body of Bhagirath was not removed which if the witness to be believed would mean that the .other witnesses to whom reference has been made earlier who saw Bhoja Ram’s crime but did not see a body lying arrived on the scene of offence after this witness visited it and left which further must mean that those witnesses arrived on the scene only after the police took away the body. Effect of these depositions inter se. 10.13. PW. 9 Bhanwar Singh is the Police Constable who states that after post mortem on 24-12-94, the body was handed over to accused Bhoja Ram father of the deceased at that time. It will be seen that there was no suspicion on Bhoja Ram. The deposition of this witness proves that the body of deceased Bhagirath was taken for post mortem on 24-12-94 and on that very day, it is handed over for funeral rites to the father of the deceased. The witness then deposes that on the same day, he was handed over three sealed packets to enter in the register of Mallthana in crime No. 98/94. The witness then deposes that on the same day, he was handed over three sealed packets to enter in the register of Mallthana in crime No. 98/94. The witness has deposed that on 1-1-95, the Station House Officer, Bhojasar handed over three sealed packets to the witness in crime No. 99/94. The testimony of this witness, therefore, proved beyond reasonable doubt that the police were well aware of the fact, that death of Bhagirath was in suspicious circumstances and report was already lodged with the police, that the death is caused by person named in that report. It will have to be seen in spite of such being situation why the police thus to prosecute on the basis of information lodged on 3 1-12-94. 114. PW. 10 is Uma Singh who proved the arrest of accused Bhoja Ram on 1-1-95 in crime No. 99/94. PW. 11 is the Doctor Heera Lal Soni who proves the homicidal death of Bhagirath. PW. 12 is the Constable who sent certain samples to the laboratory at Jaipur. PW. 13 is the Constable who went of enquiry regarding the complaint made by Dhopi on 3 1-12-94. PW. 14 Babulal speaks of certain recoveries made by the police where he was present as Punch. PW. 15 Moti Singh is witness to the arrest of the accused on 1-1-95. PW. 16 is another Constable who took certain samples to Jaipur. 115. PW. 17 is the so called eye-witness or the so called solitary eye-witness to the whole incident who chose to lodge the first information report on 31-12-94, seven days after the occurrence. She has deposed that in the morning of 24-12-94 or around the time of sunrise, she heard commotion from the house of Bhoja Ram and therefore, she came out the house when she saw her son Bhoja Ram beating his son Bhagirath with lathi. She then stated that Bhoja Ram gave two lathi blows to Bhagirath on his head near the ear and as the result of those blows, Bhagirath started bleeding and fell. She then deposes that there after, Bhoja Ram took a knife and stabbed the son in the stomach which resulted in intestine coming out. It would be worthwhile to note what she said in this regard in vernacular. She then deposes that there after, Bhoja Ram took a knife and stabbed the son in the stomach which resulted in intestine coming out. It would be worthwhile to note what she said in this regard in vernacular. She then states after about two hours from that, Bhagirath died and she lodged the first information report in writing seven days after the incident. In her cross-examination, she has admitted that her statement recorded by the police on the date of occurrence i.e. 24-12-94 itself but she did not tell the police at that time about the accused killing the deceased. 116. PW. 18 Vikram Singh who took the investigation after the report was lodged on 31-12-94. The witness has stated that when he returned from vacation on 24-12-94, he went to investigate F.I.R. Crime No. 98/94. 117. PW. 19 states that on 24-12-94, he was working as Assistant Inspector of Police when he heard on radiogram from Police Station, Bhojasar that within the jurisdiction of village Bhojasar, one Bhagirath has been killed. He states that the statements of several persons including Dhopi were recorded on same day. He then says that thereafter, crime No. 99/94 was registered against the accused Bhoja Ram. He has also spoken of time when he recorded the statement of Dhopi PW. 17 in the crime No. 98/94. He states that when this was done, persons named as accused in crime No. 98/94 were not there. 118. It is on the basis of this evidence that the learned Judge has chosen to convict the accused of murder. In our opinion on reappreciation of the evidence on record, it is impossible to sustain the order of conviction, it is palpably wrong and on complete misreading of the evidence on record, the only so called eye-witness is Dhopi who chose to keep quiet about the incident from the seven days and then lodged first information report on 31-12-94. The witness has however, chosen to keep quiet about the incident when she was questioned by the police on 24-1 2-94 itself in relation to the report filed on that day about the assault on Bhagirath the deceased. The entire testimony of this witness is therefore, vitiated. She was definitely motivated in favour of her sons and has stated this falsehood to save her other person from the possible murder. 119. The entire testimony of this witness is therefore, vitiated. She was definitely motivated in favour of her sons and has stated this falsehood to save her other person from the possible murder. 119. From the deposition of the police witnesses as also other persons examined by the prosecution, it is clear that the death of Bhagirath occurred on 24-12-94 and was well known to the police from that very day investigation into that death was going on against the person named in that report till 31-12-94 when Dhopi lodged the complaint against Bhoja Ram on the basis of which the prosecution started. The eyewitness accounts of the grandmother Dhopi PW. 17 is unbelievable, falsehood and fabricated for the purposes of protecting her other children and deserves no credence. The investigation as is made authentisitive, proper direction cannot be relied upon for any purpose. There is no evidence on record that the injuries on the person of Bhagirath were inflicted by the accused Bhoja Ram in the absence of such evidence, we find it illegal to confirm the sentence and conviction as ordered by the learned Additional Sessions Judge. The accused deserves to be acquitted. 120. In the result, the appeal succeeds and is allowed. The accused is hereby acquitted of the charges under Section 302 of the Indian Penal Code He be released forthwith if not required for any other offence by the police.