JUDGMENT 1. Raghunath Singh, his brother Ishwar Singh and his (Raghunath Singh's) son Mahavir Singh alias Tampe were convicted the first named under section 302 IPC and the remaining two under section 302 read with Section 34 IPC and each was sentenced to imprisonment for life and a fine of Rs. 10,000/- or in default of its payment to further rigorous imprisonment for two years on 6.7.94 by Mr. Brijlal Bundel the then Additional Sessions Judge, Jhalawar. Aggrieved they have directed the instant appeal against their conviction and sentence. 2. The prosecution case, in sum and substance, was that some days before the occurrence Ishwar Singh accused had misbehaved with a sister of Piru Lal deceased on account of which the latter had administered a thrashing to the former. On the fateful day (3.9.93), while Chander PW 3 and his brother Piru Lal deceased were returning from the fields in the area of their village Kotadi at or about 8/9 am the three accused of whom Raghunath Singh was armed with a knife besides a gun and the other two Mahavir Singh alias Temple and Ishwar Singh with lathis pounced upon the deceased Piru Lal and belaboured him. Chander PW 3 raised a hue and cry and followed the accused who took the deceased to the" Bajrangbali temple, there Raghunath Singh accused gave a knife blow to the deceased on his back and the other two accused hit him lathi blows. As per the version given in the FIR, the occurrence was witnessed by Devi Lal PW 2, Kaluji Gujar PW 1 Keshar Bai PW 6 (deceased's sister) and many others from the village. The accused thereafter made good their escape from the spot. The deceased who succumbed to his injuries, was removed in a animal driven cart by Chander PW 3 his sister Keshar Bai PW 6 his mother Gyani Bai PW 8 Police Station Pidawa where Chander PW 3 submitted written FIR (Ex.P 3) on the basis of which formal FIR (Ex.P 4) was registered by SHO Sh. Bajrang Lal Verma PW 15. The post mortem was performed the same day in the after-noon by Dr. Hari Mohan Gupta PW 13 whose post mortem report is Ex.P 16. The case was investigated into by the police. The accused were arrested. Bajrang Lal Verma PW 15. The post mortem was performed the same day in the after-noon by Dr. Hari Mohan Gupta PW 13 whose post mortem report is Ex.P 16. The case was investigated into by the police. The accused were arrested. In due course and the weapons of offence were recovered from the accused from their places of concealment in pursuance of their respective disclosure statements. On these facts after completion of investigation the accused were challaned by the Police and were committed to stand their trial in the Court of Session vide formal order of commitment passed by the concerned ilaka Magistrate. In support of its case the prosecution examined a total of 15 witnesses including Kalu PW 1, Devilal PW 2, Chander (informant) PW 3, Udailal PW 4, Kesar Bai PW 6, Gyani Bai PW 8 eye witnesses, Doctor Harimohan Gupta PW 13 (the medical man) and the investigating officer Bajrang Lal Verma PW 15. In their statements at the close of the prosecution case the accused denied the allegations against them and pleaded their false implication. They produced Laxmi Narayan DW 1 in their defence. The result of their trial has been noticed at the out-set. 3. In their statements at the close of the prosecution case the accused denied the allegations against them and pleaded their false implication. They produced Laxmi Narayan DW 1 in their defence. The result of their trial has been noticed at the out-set. 3. By the learned counsel for the appellants the arguments pressed into service before us are (i) that Chander PW 3 the informant at the time he appeared and testified before the trial court gave an altogether different version from that given by him in the FIR inasmuch as he now claimed that Mahaveer Singh alias Tampe accused was armed with a farsi and knife, that when the accused took the deceased to the Bajrangbali temple he instead of following them had run to his house within the abide of their village and fetched his sister Kesar Bai PW 6 and their mother Gyani Bai PW 8 and that at the Bajrangbali temple the accused had inflicted a knife below on the deceased on his ribs as well, (ii) that Udailal PW 4, who was not named as an eye witness in the FIR though he was subsequently cited as such during investigation when his police statement was recorded on the 9th of that month, at the,time he deposed at the trial maintained that the deceased was set upon by three' accused in Udailal's field and at that time the deceased had cried out addressing Raghunath accused as Raghunath dadaji to let him go as the knife had been thrust in his abdomen up to the hilt and that after assaulting him in the said field the accused had taken the deceased to the temple of Hanumanji and there Chander PW 3, his mother and sister had arrived and Udailal had at that time left as that was the time for him to attend to his she buffalows. Thus his version of the incident was different from that given by the informant either in the FIR or in his statement in Court at the trial, (iii) that Kesar Bai PW 6 the deceased's sister had in cross examination admitted that no below was given in her presence (iv) that the informant in his cross examination admitted that it had taken him some fifteen minutes to reach their house from the spot when he fetched his mother and sister for their house was some two kilometers distant therefrom and he had taken 10-15 minutes to cover the distance in the reverse direction from their house to the Bajarangbali temple thereby rendering the witnessing of occurrence either by him or his sister and mother at the Bajarangbali temple improbable for the accused would not commune to belabour the deceased for that much period or wait to cause the knife below after his arrival accompanied by his sister and mother meaning thereby that neither of them witnessed the occurrence at the Bajarangbali temple, (v) that the account of scribing of the FIR given by Chander informant that he had jotted down the FIR while travelling in the animal driven cart with the deceased to the police station was belied by Kesar Bai PW 6 who was just as emphatic that her brother had not written the report while travelling in the animal driven cart ali of which was irreconcilable and suffices to throw a pall of doubt on the prosecution case as such the conviction and sentence of the appellants were rendered unsustainable. 4. 4. The learned Public Prosecutor appearing for the State has on the contrary argued that Raghunath Singh appellant was a police personnel therefore, the police had not properly investigated into the case, on the other hand had tried to help the accused appellants, that the FIR under the circumstances was prompt wherein the three culprits are duly named as also the eye witnesses except Udai Lal PW 4 who was a natural witness but was not so named in the FIR though the occurrence had taken place in his field at a time when he was likely to be there, that the informant Chander PW 3 and Udai Lal PW 4 have stated that the knife blow was caused by Raghunath appellant to the deceased while the others had dealt him lathi blows, that such contradictions as were there in the statements of these eye witnesses were due to passage of time and that as the account of infliction of knife blow given by PW 3 Chander and PW 4 Udai Lal is corroborated by medical evidence, (post mortem to be precise) where besides stab wound two lacerated wounds on left leg and a bruise on the right thigh were found, so the appellants were rightly convicted and their convictions and sentences call for no interference in this appeal. 5. Now the version given by the informant Chander PW 3 in the FIR was that when he and his brother the deceased were returning home in the area of their village on that morning the accused of whom Raghunath Singh was armed with a knife in addition to a gun and the other who with lathis had intercepted the deceased and assaulted him, after which they took him to the Bajrangbali temple on which he (informant) raised hue and cry and followed them and at the Bajrangbali temple Raghunath Singh hit him a knife blow on his back and the other two accused hit him lathi blows. However at the time he was examined at the trial as PW 3 he (Chander) gave a totally different version altogether and now he would have the Court believe that Mahavir Singh alias Tampe appellant was armed with a knife in addition to a farsi, Raghunath Singh was armed with a run and Ishwar Singh with a lathi and that when they belaboured the deceased he (Chander PW 3) had rushed to his house in the village abadi and returned to his shouse in the village abadi and returned to the Bajrangbali temple with his sister Keshar Bai PW 6 and their mother Gyani Bai PW 8 and it was then and not before that Raghunath Singh appellant gave a knife blow to the deceased at his back and the other accused his him lathis. How Mahavir Singh alias Tampe appellant who was attributed to have been carrying a gun only came to be armed with a lathi remains unexplained. In cross examination he (Chander PW 3) gave out that their house was a couple of Kilo-meters away from the spot, it had taken him some 15 minutes to cover the distance and accompanied by his sister and mother he had covered the distance in the reverse direction from their house up to the Bajrangbali temple in 10-15 minutes. If that was so, that would imply that the appellants had continued to perpetrate the assault for that much time extending to 25-30 minutes which is improbable in the extreme. Also improbable in the extreme is the wait on the part of the appellants for the informant, his mother and sister to arrive at the spot before dealing the fatal knife blow. The version given by the informant in the FIR and the version given by him in Court are of course irreconciliable. Udai Lal PW 4 has an entirely different story to tell. The version given by the informant in the FIR and the version given by him in Court are of course irreconciliable. Udai Lal PW 4 has an entirely different story to tell. If he is to be believed after the appellant had way laid him, of whom Raghunath Singh was armed with a gun, Tample with a lathi to which a farsi was attached and Ishwar Singh with a lathi, the deceased had cried out addressing Raghunath Singh appellant as Raghunath dada and pleaded that knife had been thrust in his abdomen up to the hilt and that it was thereafter that the three appellants took the deceased to the Hanumanji temple where he had followed them and at that time Chander PW 3 accompanied by his sister appellant had belaboured the deceased with 'farsiwali lathi' and at that juncture he Udailal PW 4 had left as it was the time for him to tend his she bufalows. It is not believable for a moment that if Udai Lal PW 4 was present and as witnessed the occurrence he would just walk away non-challently as if what he had seen was nothing out of the ordinary. Keshar Bai PW 6 who was ushered into the witness box as an eye witness sets her testimony at naught by giving out in cross examination that no blow was given in her presence to the deceased. In other words she is not an eye witness of the infliction of injuries on the deceased. PW 8 Gyani Bai states that when she reached Bajrangbali temple on being fetched by her son the informant Raghunath Singh appellant was found giving knife blows to the deceased and he then being armed with a gun as well, had warned that none should come nearer and that besides infliction of a lathi blow each by Ishwar Singh and Tampe appellants, had hit deceased on his right leg with a knife. Needless to say this part is falsified by the post mortem report for there was no knife injury on the leg. Nor is this all. When cross examined she (Gyani Bai PW 8) gave out that when she reached near Bajrangbali temple the deceased had become unconscious and Raghunath Singh appellant had left with his gun for his 'rawala'. Needless to say this part is falsified by the post mortem report for there was no knife injury on the leg. Nor is this all. When cross examined she (Gyani Bai PW 8) gave out that when she reached near Bajrangbali temple the deceased had become unconscious and Raghunath Singh appellant had left with his gun for his 'rawala'. These contradictions which are material and go to the root of the case by no stretch of reasoning's or imagination can be reconciled. If the investigation into the case had left something wanting either intentionally or unintentionally and was less than perfect, to put it mildly, its benefit would not go to the prosecution. Kalu PW 1 and Devi Lal PW 2 of course have not supported the prosecution case at all. They were cross examined by the prosecution with the permission of the court but nothing favourable to the prosecution could be elicited from them. In the circumstances the prosecution case cannot be held to be free from reasonable doubt and the conviction and sentence of the appellants therefore, cannot be sustained. 6. Consequenlty we accept the appeal, set-aside the conviction and sentence of the appellants and acquit them of the charge against them. The fine if deposited be refunded to them. Raghunath appellant is in custody. He is to be released forthwith if not wanted in any other case. Mahavir Singh alias Tampe and Ishwar Singh appellants are on bail. They need not surrender and their bonds stand discharged. *******