Judgment V.G. Palshikar, J.-Being aggrieved by the Judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, No. 2, Sriganganagar in Sessions Case No. 25/95 convicting the accused-appellants under Section 302/34 of the Indian Penal Code and sentencing them for life imprisonment with a fine of Rs. 500/-each and in default of payment of fine to further undergo two months’ imprisonment, the appellants have preferred this appeal on the ground mentioned in the memo of appeal as also on the grounds urged at the time of hearing of the appeal. 2. Facts giving rise to the appeal stated briefly are that first information report was lodged on 26th May, 1992 that the accused persons in the night of 25th May, 1992 at about 8.30 p.m., attacked one Chakar Singh with the intention to kill him in his house and thereafter outside his house in village Chak-3 S. H. P. D. in Suratgarh District. Investigation was conducted on the basis of this information and the accused persons were prosecuted for causing murder of Chakar Singh. The prosecution has examined eight witnesses to prove its case and the witnesses have proved certain documents. On appreciation of the oral and documentary evidence on record, the learned Additional Sessions Judge came to the conclusion that the accused-persons were guilty of murder and, therefore, sentenced them to imprisonment for life. This order is impugned in these two appeals. Appeal No. 559/97 is filed by three accused persons Gurdeep Singh, Balbir Singh and Darshan Singh and Appeal No. 59 1/97 is filed by Barkat Ali. All the four accused persons were found guilty of murdering of Chakar Singh in the night of 25th May, 1992 by fatally assaulting him with lathis. The order of conviction was assailed by Shri R. S. Gill on behalf of Barkat Ali and Shri N. L. Joshi on behalf of the other accused-appellants. 3. With the assistance of the learned Counsel, we have reappreciated the evidence on record. In this case, there are only eight witnesses, of the eight witnesses, three are eye-witnesses, two of them are sons of the deceased-Chakar Singh and PW 1 is the neighbour who claims to have seen the incident over his boundary wall. PW 3 turned hostile. PW 4 Dulichand is the Police Constable who carried the sealed articles for analysis to the F. S. L., Jaipur. PW 3 turned hostile. PW 4 Dulichand is the Police Constable who carried the sealed articles for analysis to the F. S. L., Jaipur. PW 5 is Constable, In-charge of the Malkhana. PW 6 Tichpal is Station House Officer who investigated the crime. PW 7 Dr. Om Prakash who proves the death of deceased homicidal in nature. As will be seen from the discussion that follows hereinafter, we find it extremely difficult to sustain the order of conviction on such insufficient and inadequate evidence. 4. PW 1 Jangir Singh claims that he witnessed the incident. He has deposed that in the evening when he was coming from his field, he saw Barkat Ali and Chakar Singh were consuming liquor in the house of Chakar Singh then he says that he saw Barkat Ali giving lathi blow to Chakar Singh and he did not see anyone else on the scene of offence. The witness was confronted with his earlier statement by the Public Prosecutor where he has mentioned the presence of three other accused persons also. The witness then denied such thing and claimed the statement wrongly recorded. In cross-exainination, the witness has admitted that there is a two feet wall between his house and the house of Chakar Singh. He has further stated that he was watching from 30 feet distance and then states that he was watching the incident for one hour or one and half hour. This witness is wholly unreliable; firstly because he has retracted from his statement that other accused persons were present. If the retraction is correct, then the statement that Barkat Ali who assaulted Chakar Singh for one hour is unbelievable. Secondly, he says that he saw Barkat Ali and Chakar Singh drinking liquor together and give no reasons that all of a sudden Barkat Ali assaulted Chakar Singh. This demonstrates tendency to exaggerate the entire incident on the part of the witness. To accept such evidence without corroboration is extremely risky. 5. PW2 Mahal Singh is the son of deceased-Chakar Singh and has deposed that he saw the incident. However, there is a note that at the request of the Advocate, Shri Pooran Singh Counsel for the accused could not appear because of “BHARAT BAND” and the cross-examination was reserved. Thereafter, the accused was not given opportunity to cross-examine the said witness and thereafter, the witness has died. However, there is a note that at the request of the Advocate, Shri Pooran Singh Counsel for the accused could not appear because of “BHARAT BAND” and the cross-examination was reserved. Thereafter, the accused was not given opportunity to cross-examine the said witness and thereafter, the witness has died. In such circumstances, when no opportunity to cross-examine the witness was available to the accused-persons, the testimony of the witness will therefore, have to be excepted from consideration. PW 3 Preetam Singh has been declared hostile by the prosecution’ and his evidence is, therefore, inconsequential. 6. Theonly eye-witness is Lal Singh, the son of Chakar Singh, the deceased. This witness has deposed that in the evening at about 7 0’ Clock came to the house when he is sitting with his father (deceased) on the cot, Mahal Singh also came and sat there. The witness has then deposed that 10-15 minutes thereafter, accused Barkat Ali, Gurdeep Singh, Darshan Singh and Balveer Singh came there armed with lathies and started assaulting his father Chakar Singh and Chakar Singh ran into the house. The accused persons followed him and dragged him out felling him on the cot and again beating, when Mahal Singh and Lai Singh ran away from the place due to fear and hide themselves in “SHAMSHAN” and came back after two hours to find the father lying dead. Then they went to the Police Station, Suratgarh but they were stopped by the accused persons and, therefore, they left for Ganganagar. The deposition postulates therefore, that the accused persons were waiting for the sons to return, prevented the sons from going to the police station but did not cause any injury and allowed them to go to Ganganagar. The cross-examination of this witness is also revealing. He has stated in his cross-examination: 7. Then he has deposed in the cross-examination that they reached the Additional D. S. P. at about 8.00 a.m. and reached the Police Station, Suratgarh at about 1.00 p.m. and thereafter obviously, the report was lodged. The cross-examination of this witness is also revealing. He has stated in his cross-examination: 7. Then he has deposed in the cross-examination that they reached the Additional D. S. P. at about 8.00 a.m. and reached the Police Station, Suratgarh at about 1.00 p.m. and thereafter obviously, the report was lodged. Yet the first information report Exhibit P/21 at page 59 shows that the first information report was recorded at 8.30 a.m. If the testimony of this witness is excluded, it remains unexplained as to how report was lodged at 8.30 a.m. If the testimony of this witness is to be accepted, the deposition of PW 1 Jangir Singh that Barkat Ali and Chakar Singh were drinking liquor is false. If the statement of this witness is to be accepted, the statement of Jangir Singh that he saw the assault for one hour is not acceptable. From the scrutiny of Panchanama of the spot, it is seen that there was no blood on the cot nor on the floor below the cot. It is unlikely that the blood of a man thrashed out by four persons on a cot by lathi blow will not be found on floor. Apart from that, the conduct of the sons Mahal Singh and Lal Singh is highly unnatural in running from the assault that was taking place on their father. It shakes conscience to believe that sons would run away without trying to save father, even if it is assumed that such shaking action can take place. We find impossible to believe that the sons would run away so far and return only after two hours. 8. There are thus, several contradictions in the testimony of PW 8 Lai Singh. According to this witness, they came back to the scene of the offence two hours after the assault and then proceeded towards Suratgarh to be accosted by the accused. If the testimony is to be believed, it means that the accused were waiting for the sons to return so they could be harmed and consequently prevented them to go to the police but it appears that the accused requested the witnesses not to go to the police or Suratgarh and the request exceeded. We find it, therefore, an improbable deposition by Lai Singh. We find it, therefore, an improbable deposition by Lai Singh. Looking to the material contradictions between the evidence of PW 1 and 8 and looking to the medical evidence which states that the stomach of the accused was empty so there was neither consumed liquor or food by the deceased, the entire story is disclosed by these witnesses appears to be incorrect, in any event, it is not a whole truth. In such circumstances, to maintain the conviction and sentence of the accused persons on scanty, faulty and contradictory evidence will be illegality, we are unable to uphold the order of conviction. In the result, the appeals succeed and are allowed. The accused persons be released forthwith, if not required for any other offence.