JUDGMENT 1. - All the three appeals are directed against the judgment and order dated 21.12.1993 passed by the Additional Sessions Judge (Special Judge SC/ST Court) Ajmer in Sessions Case No. 67/92 (66/89) State v. Jaswant Singh & Ors. , whereby he convicted all the appellants for offence punishable under Section 302/34, Indian Penal Code and sentenced them to life imprisonment and fine of Rs. 500/-, in default of payment of fine to further undergo three months' simple imprisonment. 2. In short, the facts of the case are that in the morning of 10th February, 1989, it was informed on phone to Police Station Civil Lines, Ajmer that a dead body is lying in Sharda Compound Civil Lines. This information was received by Dev Giri, ASI, who after recording the information informed senior police officer and proceeded to Sharda Compound. The Superintendent of Police, on receiving the information directed Bhagwan Singh (PW 26) to go to Sharda Compound to do needful. Shri Bhagwan Singh arrived at the place of occurrence at about 12.30 p.m., Shri Dev Giri, ASI alongwith other police personnel was also present. The dead body could not be identified at that time, photographs were taken, panchayatnarna was prepared, sample of blood smeared soil, control soil were taken. Auto Rickshaw bearing Registration No. RNW 3264 was seized. The dead body was removed to J.L.N. Hospital Ajmer, Post Mortem was performed. One Shri Jagdish (PW 1) driver of Auto Rickshaw also arrived there, he identified the dead body of Manjul Purohit. On the basis of the statement of Jagdish all the appellants were arrested, at their instance blood-stained clothes, knife, were recovered. During investigation it was revealed that there was some dispute regarding the house in which deceased alongwith his parents was residing. Shri Madan Lal (father of deceased) and Shri Genda Singh both were claiming the ownership of the house. Shri Genda Singh was pressurising Madan Lal to vacate the house but he declined to do so, civil cases were also filed in Court. To get the house vacated Genda Singh entered into a conspiracy with the accused appellants and had paid some money for the purpose, and in furtherance of this conspiracy; accused appellants abducted deceased from his house, committed murder and left the dead body in Sharda Compound. To get the house vacated Genda Singh entered into a conspiracy with the accused appellants and had paid some money for the purpose, and in furtherance of this conspiracy; accused appellants abducted deceased from his house, committed murder and left the dead body in Sharda Compound. Before that, appellants have taken Auto Rickshaw of Jagdish on hire and visited several places alongwith deceased and his friend Anil PW 10. Thereafter Genda Singh was also arrested. 3. After investigation, a charge sheet was filed in the Court of Magistrate against the appellants and Genda Singh for the offence under Sections 302/34, 302/120B, 364, IPC. As the case was triable by the Court of Sessions, the case was committed to Court of Sessions, Ajmer, from where it was transferred to Additional Sessions Judge for trial. 4. After hearing the Public Prosecutor and Counsel for the accused the learned Additional Sessions Judge framed the charge against the present appellants as follows : (1)Vinod Fedrick - 302, 302/34, 102/ 120B, 364, IPC (2) Jaswant Singh - 302/34, 302/120B, 364, IPC (3) Pappu - 302/34, 302/120B, 364, Indian Penal Code (4) Genda Singh - 302/120B 5. All the accused pleaded not guilty to the charge and claimed trial. 6. On behalf of prosecution in all 26 witnesses were examined and Ex. P1 to Ex. P38 documents were tendered in evidence. Statements of accused under Section 313, Cr.P.C. were recorded. They denied all the allegations. Accused Jaswant Singh stated that he alongwith Mukesh (DW 1) was taken to Police Station Civil Lines by ASI Dev Giri on 8.2.1989. Mukesh was released after taking bribe, but as he refused to give money he was falsely implicated in this case. When on 9.2.1989 Jagdish came to police station to lodge a report about his Auto Rickshaw, he (accused) was in lock up. Jagdish was detained by police and was compelled to give statement against the accused. He examined DW 1 Mukesh in support of his defence. 7. The learned Additional Sessions Judge after taking into consideration all the evidence placed before him, acquitted Genda Singh from the charge of conspiracy to commit murder (charge under Section 302/120B) and appellants were also acquitted from the charge under Sections 302/120B, 364, Indian Penal Code but convicted the appellants for the offence under Section 302/34 and sentenced as stated earlier. 8. 8. We have heard the learned Counsel for the appellants and Public Prosecutor and perused the record, judgment of Trial Court. 9. The learned Counsel appearing on behalf of appellants have challenged the finding of the Trial Court mainly on the following grounds : (1) The Trial Court has disbelieved the prosecution case regarding the motive of committing murder of deceased and acquitted Genda Singh from the charge under Section 302/120B, Indian Penal Code and the appellants from the charge under Section 302/120 & 364, IPC, therefore, conviction of the appellants under Section 302/34, Indian Penal Code is ex facie illegal and perverse. (2) The Trial Court has convicted the appellants on an erroneous appreciation of evidence. PW 1 Jagdish and PW 10 Anil examined as eye witnesses to the occurrence are not trustworthy, no reliance should have been placed on their statements.Besides the statement of these two witnesses, no other evidence is available on the record to connect the appellants with the crime. (3)That the police received the information about the incident in the early morning investigation commenced, therefore, the subsequent report lodged by Bhagwan Singh is hit by Section 162, Cr.P.C. the entire prosecution case is liable to be dismissed on this ground. Cause of Death : 10. The cause of death of Manjul Purohit according to Dr. V.D. Kavia (PW 9) who performed post-mortem was due to "penetrating ante-mortem injuries to heart and lung, and associated injuries". In a1134 ante-mortem injuries mostly by the sharp edged weapon were found on the body of deceased alongwith Ligature mark on the neck as described in Ex. P10, the post mortem report. This report was admitted on behalf of accused persons during trial. The cause of death, the ante-mortem injuries has not been disputed before us. Therefore, it is a case of causing death by sharp edged weapon. 11. According to prosecution there was motive to commit murder, PW I Jagdish, PW 10 Anil are the eye witnesses of the incident and there is circumstantial evidence to connect the accused with the crime. 12. It has been submitted by the learned Counsel Mr. Biri Singh that prosecution had cone with very specific case that there was dispute about the house occupied by Madan Lal (father of deceased) and Genda Singh accused (who has been acquitted by the Trial Court). 12. It has been submitted by the learned Counsel Mr. Biri Singh that prosecution had cone with very specific case that there was dispute about the house occupied by Madan Lal (father of deceased) and Genda Singh accused (who has been acquitted by the Trial Court). Genda Singh entered into a conspiracy with the appellants to get rid of the deceased and hired accused appellants for committing murder. But this part of the story of prosecution has been disbelieved by the Trial Court and acquitted Genda Singh and appellants for the charge under Section 302/ 120-B, Indian Penal Code and also appellants for the charge under Section 364, IPC. When Trial Court itself has disbelieved the prosecution case regarding motive for committing murder, abduction of deceased, the conviction of appellants for offence under Section 302/34, Indian Penal Code is ex facie illegal and perverse. 13. We have examined the evidence produced before the Trial Court to prove the conspiracy for committing murder. The prosecution examined PW Daulat Singh, PW 15 Bal Kishan, PW 22 Madan Lal, PW 25 Shyam Lal. Daulat Singh and Bal Kishan were declared hostile, the learned Additional Sessions judge after examining the statement of Madan Lal and Shyam Lal held that prosecution has failed to prove the conspiracy to commit murder and acquitted Genda Singh and appellants from the charge under Section 302/120-B, IPC. Similarly, all the appellants were acquitted from the charge under Section 364 Indian Penal Code on the ground that deceased was not abducted by the appellants. We agree with the finding of Trial Court on both the counts. But proof of motive is not essential for success of a prosecution case when the ocular testimony in support of it is convincing and reliable. 14. It has been held in State of U.P. v. Hari Pd., AIR 1974 SC 1740 , that "It is never incumbent on the prosecution to prove the motive for the crime. And often, a motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive. But if the crime is alleged to have been committed for a particular motive it is relevant to inquire whether the pattern of the crime fits with the alleged motive". 15. And often, a motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive. But if the crime is alleged to have been committed for a particular motive it is relevant to inquire whether the pattern of the crime fits with the alleged motive". 15. The failure of the prosecution to establish the motive for the crime does not mean that the entire prosecution case should be thrown out. It only casts a duty on the Court to scrutinise the other evidence particularly of the eye witnesses with greater care. 16. In the instant case it has come on record that deceased was known to accused persons prior to the incident. There was no enmity or dispute between them. The case of the prosecution is very specific that due to dispute about the house in which deceased with his parents was residing, and to pressurise to vacate the house, Genda Singh hired the accused appellants to abduct and kill the deceased. But this could not be proved by the prosecution and Genda Singh has been acquitted from the charge of Section 302/ 120, Indian Penal Code alongwith the appellants. But the prosecution case rests upon direct and circumstantial evidence, therefore, as observed earlier, the prosecution evidence is to be scrutinised with greater care. 17. The prosecution evidence can be classified into three parts : (1) Statements of PW 3 Ram Singh, PW 4 Bhoop Singh, PW 19 Bhagwati Devi to prove that deceased was last seen with the appellants. (2) Statements of PW 1 Jagdish, PW 2 Hanuman, PW 5 Govind Singh, PW 10 Anil, PW 11 Prem Singh, PW 13 Hari Prasad, alleged eye witnesses. (3) Recovery of knife, jacket, bushshirt having blood spots at the instance of accused appellant. 18. Mr. Ram Singh PW 3, Traffic Police Constable has stated that he saw Jaswant Singh, Vinod Fedrick in an Auto Rickshaw RNW 8264, on 9th February, 1989. Similarly, PW 4 Bhoop Singh, Head Constable, Traffic Police, has stated that he saw Jaswant Singh, Vinod Fedrick, Pappu in Auto Rickshaw RNW 8264. But both the witnesses have not seen deceased with the appellant in Auto Rickshaw. 19. Shrimati Bhagwati Devi PW 19, mother of deceased, has stated that on 9.2.1989 at about 8.30-9.00 p.m. Vinod, Pappu, Jaswant came to her house. But both the witnesses have not seen deceased with the appellant in Auto Rickshaw. 19. Shrimati Bhagwati Devi PW 19, mother of deceased, has stated that on 9.2.1989 at about 8.30-9.00 p.m. Vinod, Pappu, Jaswant came to her house. At that time, Manjul was taking his food, alongwith his friend Anil. Vinod asked Manjul to accompany them to Jaipur and informed that they would be coming back next morning. PW 10 Anil has also given the same statement and stated that when he came out from the house, he saw one Auto Rickshaw standing there, then all the five persons went in Auto towards RTO Office in Civil Lines. But this fact has not been supported by PW 1 Jagdish, Auto Rickshaw driver. According to him his Auto was hired by Pappu and Jaswant, after visiting some places they reached Krishi Upaj Mandi and enquired something from Chowkidar, he asked Vinod that to whom they are searching. Vinod replied that they are searching Manjul because some money was to be paid to them by Manjul. From there they went to "Pal Beachla", where Manjul and Anil met them. They they all five went to R.T.O. Office in his Auto Rickshaw. He has not stated that Manful and Anil accompanied them from the house of Manjul. 20. PW 2 Hanuman, PW 5 Govind Singh, PW 11 Prem Singh, PW 13 Hari Pd. have not supported the prosecution case, therefore, they were declared hostile. As such there are only two witnesses. PW 1 Jagdish Auto Rickshaw driver and PW 10 Anil about the incident who have stated that after reaching R.T.O. Office, accused appellants asked Jagdish to leave Auto with them and to come in the next morning to collect it and also asked Anil to go from that place. According to them as soon as they reached at the corner of road they heard the cry of Manjul, at that time in the light of tube light they saw that Vinod caught hold of Manjul by his collar, Jaswant and Pappu were inflicting knife blows. On seeing it, they ran away from the place of incident. 21. The Trial Court has held that the statement of these two witnesses are reliable. It has been submitted by the learned Counsel that the conduct of both the witnesses is very unnatural. On seeing it, they ran away from the place of incident. 21. The Trial Court has held that the statement of these two witnesses are reliable. It has been submitted by the learned Counsel that the conduct of both the witnesses is very unnatural. PW 10 Anil from the place of incident went to the house of Mahesh, from there to Nadbai without informing anybody. Similarly, there are material discrepancy and contradictions in the statement of Jagdish. We have examined the statement of these witnesses minutely. We are of the opinion that looking to the conduct and discrepancy in the statement it would be unsafe to place reliance on these two witnesses. 22. PW 1 Jagdish, PW 10 Anil both have stated that they heard the cry of Manjul and from some distance they had seen the incident in the light of tube light and narrated how Manjul was killed by accused appellants, but PW 2 Hanuman Singh, PW 5 Govind Singh have stated that tube light was off. PW 11 Prem Singh, PW 13 Hari Pd. have also not supported the prosecution case. There is none to say except Jagdish and Anil that they heard the cry of any person whereas the incident had taken place at about 10.00 p.m. in a colony where several residential houses are located. 23. PW 10 Anil has stated that he had come from Nadbai to collect his T.C. and was staying with Manjul on 9th February, 1989, but it has been denied by Shrimati Bhagwati Devi, mother of the deceased. She has stated that Anil was staying with his Phupha. 24. Shrimati Bhagwati Devi has stated that Manjul was not in habit of taking liquor. But Dr. Kavia has stated that at the time of post-mortem, it was found that deceased had taken alcohol, but both the witnesses are silent about taking alcohol by Manjul. Therefore, it is not clear when Manjul had taken alcohol. 25. From the place of incident Jagdish went to his village and Anil to his friend Mahesh, and from there to Nadbai on next morning without informing to anybody. Anil even did not inform the mother of the deceased or Mahesh or his father about the incident. Therefore, it is not clear when Manjul had taken alcohol. 25. From the place of incident Jagdish went to his village and Anil to his friend Mahesh, and from there to Nadbai on next morning without informing to anybody. Anil even did not inform the mother of the deceased or Mahesh or his father about the incident. He has also admitted that he did not inform his father or any other person at Nadbai also, when he received summon from police after three days at Nadbai, he informed his father and came to Ajmer where his statement was recorded by the police. 26. It has been held by the Supreme Court in the case State of U.P. v. Noorie Noor Jehan, JT (1996) 3 SC 57 , as tinder: "While assessing and evaluating the evidence of eye witnesses, the Court must adhere to two principles, namely; whether in the circumstances of the case it was possible for the eye witness to be present at the scene, and whether there is anything inherently improbable or unreliable. Credibility of a witness has to be decided by referring to his evidence and finding out how he has fared in cross examination and what impression is created by his evidence taken in manner and context of the case and not by entering into realm of conjecture and speculation." 27. The conduct of these witnesses in not informing the police what they had seen, and their omission to report about it to anybody in Ajmer or to their village is significant. In the circumstance it is unsafe to rely on their testimony. 28. PW 1 Jagdish has stated that on 10th February at about 8.30-9.00 a.m. he came to R.T.O. Office to find out his Auto, but it was not there, he informed the owner, who asked him to lodge a report with the police, therefore, he approached Civil Lines Police Station. According to Dev Giri ASI and Bhagwan Singh, Auto was removed from the place of incident in the afternoon. Jagdish has also admitted that when he reached police station he saw accused Jaswant Singh in the lock-up. Similarly, Madan Lal, father of deceased had also admitted that he saw all the appellants in police station on 11th February, whereas, according to prosecution. Jaswant was arrested on 15.2.1989, Pappu and Vinod on 19.2.1989 vide Exs. P30, P32, P33 arrest memo. Jagdish has also admitted that when he reached police station he saw accused Jaswant Singh in the lock-up. Similarly, Madan Lal, father of deceased had also admitted that he saw all the appellants in police station on 11th February, whereas, according to prosecution. Jaswant was arrested on 15.2.1989, Pappu and Vinod on 19.2.1989 vide Exs. P30, P32, P33 arrest memo. It makes the whole case of prosecution doubtful. Under these circumstances, we are unable to agree that Jagdish and Anil have seen the actual occurrence. 29. According to prosecution during investigation, knife and jacket, bushirt, pullover were recovered at the instance of accused persons and on chemical analysis, blood stains were found on them. We have perused the report Ex. P 38 of F.S.L. It is true that recovered article were found stained with human blood, but blood group of the stains could not be determined. Therefore, this evidence is not sufficient to connect the appellants with the crime. 30. It has been submitted by the learned Counsel for the appellants is that Ex. P 28 lodged by Bhagwan Singh is not the FIR. The original FIR has been suppressed. Moreover, Bhagwan Singh himself has investigated the case which he could not have done. 31. According to them, the information was given to AST Dev Giri, P.S. Civil Lines, Ajmer at 11.30 a.m. on telephone about the dead body lying in Sharda Compound. This report (Ex. P 27) was recorded by Dev Giri and after informing the higher police officer, he proceeded to the Sharda Compound where Shri Bhagwan Singh C.A. to S.P. Ajmer as per direction of S.P. also arrived and started investigation of this case. PW 26 has stated that as he was busy in the investigation of the case, therefore, he could not lodge the FIR before 5 p.m. Shri Biri Singh has also pointed out that PW 1 Jagdish has stated that in search of his Auto Rickshaw, he reached the Police Station Civil Lines at9.00 a.m. on 10.2.1989 and informed the police about the incident. It shows that police received the information of the incident at about 9.00 a.m. but that report has been suppressed. Therefore, lodging of the FIR after investigation started looses all its sanctity in the eye of law in view of this admitted position. Ex. It shows that police received the information of the incident at about 9.00 a.m. but that report has been suppressed. Therefore, lodging of the FIR after investigation started looses all its sanctity in the eye of law in view of this admitted position. Ex. P28 is inadmissible in evidence, being hit by Section 162 Cr.P.C. and it cannot be taken as an FIR of this case, therefore, entire prosecution case is liable to be dismissed on this count alone. 32. We have gone through the statement of Dev Giri ASI, Bhagwan Singh C.A. and Jagdish. 33. Shri Devi Giri has stated that on 10.2.1989 at 11.30 some person informed on phone that a dead body is lying in the Sharda Compound. He registered this information (Ex. P27) under Section 174, Cr.P.C. and proceeded to Shara Compound alongwith other police personnel. He found dead body of an unknown person, therefore, he informed higher police officials.34. Shri Bhagwan Singh PW 26 has stated that as per direction of Superintendent of Police he reached Sharda Compound where Dev Giri ASI was present. Photographs of dead body were taken, panchayatnania was prepared. Sample of blood smeared soil, control soil were taken. Auto Rickshaw was seized from PWD Compound. Dead body was removed to JLN Hospital for post-mortem, where one Jagdish Auto Rickshaw driver was also present, he informed about the incident. His statement was recorded. After consideration of all the material he lodged the Ex. P28, report.35. Shri Jagdish PW 1 has admitted that when on next morning he could not locate his Auto near RTO Office he with the intention to lodge a report approached Police Station Civil Lines and informed about the incident. He was taken to hospital where he identified the dead body of Manjul. His statement was recorded by police.36. According to the statement of PW 24 Dev Giri, first of all he was informed about the dead body by an unknown person on phone, which he recorded marked Ex. P27. We have seen this report. The name of informant, deceased was not known. Details of incident were also not known. Therefore, the telephone message was an extremely cryptic one and could not be regarded as an FIR in any sense of the term, though in certain circumstances telephone message may be regarded as FIR, when a definite information is conveyed which is not in the instant case. Details of incident were also not known. Therefore, the telephone message was an extremely cryptic one and could not be regarded as an FIR in any sense of the term, though in certain circumstances telephone message may be regarded as FIR, when a definite information is conveyed which is not in the instant case. Now comes the statement of Jagdish recorded before Ex. P28 FIR was lodged. PW 1 Jagdish has specifically stated that he informed the police about the incident at P.S. Civil Lines, from there he was taken to hospital, he identified the dead body. His statement was recorded by the police. This fact has been admitted by Bhagwan Singh himself and finds corroboration from Ex. P28, report lodged by him wherein it has been written that:37. Therefore, Ex. P28 is based upon the statement of Jagdish the alleged eye witness to the incident which was recorded before lodging the report by Bhagwan Singh. As such the First Information Report is the statement of Jagdish, but that has not been produced and also case has not been registered on that basis. Therefore, Ex. P28 cannot be registered as FIR of this case.38. On the basis of above discussion, the prosecution has failed to prove motive of committing murder by the appellants. Ex. P28 cannot be regarded as FIR of the case. It is unsafe to place reliance on the testimony of Jagdish and Anil. There is no other evidence to connect the accused appellant with the crime. In view of this situation accused persons are entitled for benefit of doubt.39. Therefore, this appeal is allowed. We set aside the conviction and sentence recorded against the accused appellants under Section 302/34, IPC. They are in jail, if not required in any other case, they be released forthwith.Appeal allowed. *******