JUDGMENT 1. - The appellants were indicted before the learned Special Judge cum Additional Sessions Judge Dholpur in Sessions Case No. 21/90. They were found guilty, convicted and sentenced vide judgment dated August 21, 1995 by the learned judge as under- 1. Murari Lal u/s 302/149 I.P.C. to undergo imprisonment, for life and fine of Rs. 200/- in default to further undergo three months Rl. 2. Badri s/o Shiv Singh 3. Badri s/o Bhagwan Singh 4. Munshi Lal u/s 148 I.P.C. to undergo three months Rl u/s 201 I.P.C. to undergo three years Rl and fine of Rs. 200/- in default to further undergo three months Sl. u/s 325/149 I.P.C. to undergo five years Rl and fine of Rs. 200/- in default to further undergo three months Sl. 5. Sughra @ Sughar Singh u/s 302/149 I.P.C. to suffer imprisonment for life and fine of Rs. 200/- in default to further undergo three months Rl. u/s 148 I.P.C. to suffer three months Rl u/s 201 I.P.C. to suffer three years Rl and fine of Rs. 200/- in default to further undergo three months Sl. u/s 325 I.PC. to suffer five years Rl and fine of Rs. 200/- in default to further undergo three months Sl. Against this judgment of conviction that the action for filing the instant appeal has been resorted to by the appellants. 2. The prosecution case is woven like this. Ram Naresh, Head Constable, who was incharge, Kolari Outpost, Police Station Sepau (P.W.13) when visited village Indoli in connection with some police investigation, Mahesh Chand (P.W.2) submitted a written report to him at 11.00 a.m. on February 24, 1998 with the averments that m 8.00 a.m. he, Ram Singh, Prabhu Dayal, Ram Babu, and Naresh had cut the mustard crop and when they were in the process to carry the bundle of crop, Ram Singh, Nand Kishore, Murari Gyasiram, Jitendra, Sugar Singh @ Sughra, Badri Prasad, Lakho, Nahar Singh, Nawab Singh, Badri, Lalpati, Ramji, Chhitriya, Bejjo, Sukharam, Lakha, Umrao, Ram Khilari, Munshi and others armed with weapons surrounded and attacked them. Nand Kishore, Gyasiram and Murari inflicted lathi blows on Ram Singh. When Prabhu Dayal attempted to run towards village Nagriya, he was pushed down and all of them killed him by lathies and farsas and took away dead-body and pushed it in Rajju Ka Kuan of village Nagriya. Nand Kishore, Gyasiram and Murari inflicted lathi blows on Ram Singh. When Prabhu Dayal attempted to run towards village Nagriya, he was pushed down and all of them killed him by lathies and farsas and took away dead-body and pushed it in Rajju Ka Kuan of village Nagriya. The dead-body was lying in the well therefore legal action be taken. Ram Naresh handed over the said written report to constable Shiv Mangal Singh for taking it to Police Station Sepau. Raghu Veer Singh, SHO Police Station Sepau (P.W.16) on receipt of the written report at 1.30 p.m. registered criminal case No. 30/88 under Sections 147, 148, 149, 325 and 302 I.P.C. and the investigation commenced. The autopsy on the deadbody was conducted, inquest report and site plan were drawn, statements of the witnesses were recorded under sections 161 Cr.P.C.. and the accused were arrested. On conclusion of the investigation the investigating officer was of the view that 14 accused persons named in the F.I.R. were innocent and charge sheet was filed only against appellants Murari Lal, Sughra @ Sughar Singh, Badri s/o Shiv Singh, Badri s/o Bhagwan Singh and Munshilal. In due course the case came up for trial. Charges under sections 302, 201, 148, 323, 325 and 149 were framed. The appellants denied the charges and claimed trial. The prosecution examined as many as 16 witnesses. Thereafter the statements of the appellants under section 313 Cr.P.C.. were recorded. The appellants denied the allegations and pleaded that they were falsely implicated on account of enmity. However no evidence in defence was adduced. The learned trial court after hearing final submissions convicted, and sentenced the appellants as indicated hereinabove. 3. With the assistance of the learned counsel for the parties we have closely scanned the record. The prosecution examined as many as 16 eye witnesses of the incident. Out of which Chhiddu (P.W.3), Fajju (P.W.4), Sunder Singh (P.W.5), Ramjilal (P.W.6), Bhuri Singh (P.W.8), Har Bilash (P.W.9), Niroti Lal (P.W.10), and Ram Vilash (P.W.12) did not support the prosecution case and were declared hostile. The learned trial judge convicted the appellants on the basis of testimony of Mahesh Chand (P.W.2), Naresh Kumar (P.W.7), Rambabu (P.W.11), Ramesh Chand (P.W.15), and Ram Singh (P.W.14). Ram Singh (P.W.14) is the injured eye witness, whereas other witnesses did not sustain any injury. 4. The learned trial judge convicted the appellants on the basis of testimony of Mahesh Chand (P.W.2), Naresh Kumar (P.W.7), Rambabu (P.W.11), Ramesh Chand (P.W.15), and Ram Singh (P.W.14). Ram Singh (P.W.14) is the injured eye witness, whereas other witnesses did not sustain any injury. 4. The learned Senior Counsel Shri S.R. Bajwa, canvased that all the independent witnesses did not support the prosecution case and they have been declared hostile. The eye witnesses Mahesh Chand (P.W.2), Naresh Kumar (P.W.7), Ram Babu (P.W.11) and Ramesh Chand (P.W.15) are partisan witnesses and they did not receive any injury. Their presence at the time of occurrence is highly doubtful. Naresh Kumar (P.W.7) has not been named in the F.I.R. and his presence is also not natural. It is further urged that from the record it is established that deceased Prabhu Dayal and injured Ram Singh were also armed with cutting instrument at the time of the incident but none of the appellants receive any injury. The statements of eye witnesses were not recorded in time. Ram Singh (P.W.14) was admitted in the Hospital and this fact was in the knowledge of the investigating Officer but he did not care to examine Ram Singh in the Hospital and his statement was recorded on March 1,. It is further contended that from the statements of the witnesses it is established that there was no enmity between the deceased and the appellants. Motive of murder was not brought on record by the prosecution. Injured Ram Singh (P.W.14) only made a general and vague statement. No genesis of the occurrence was spell out. The site plan did not render any corroboration. No blood was found at the place of occurrence. Ocular testimony has not been corroborated by medical evidence. The prosecution did not recover any weapon of offence at the instance of the appellants. The dead body from the well was recovered in the presence of two villagers, but those villagers were not examined. 14 persons who were named in the F.I.R. were exonerated by the investigating officer and the prosecution did not assail the finding of the investigating officer. There is ample evidence against Nand Kishore and Gyasi but they were not tried. The prosecution failed to establish that as to who was the author of the fatal injury. 14 persons who were named in the F.I.R. were exonerated by the investigating officer and the prosecution did not assail the finding of the investigating officer. There is ample evidence against Nand Kishore and Gyasi but they were not tried. The prosecution failed to establish that as to who was the author of the fatal injury. It is also contended that in the inquest report Ex.P.5, reference of section 174 Cr.P.C. has been given which suggests that till then no case under section 302 I.P.C. was registered. Though at the top of the inquest report F.I.R. number has been correctly incorporated but reference of section 302 I.P.C. has not been made. Even from the statement of Ram Naresh (P.W.13) it is established that when he was passing through the village Indoli, Mahesh came to him and only said that his brother was dead and his dead-body was lying in the well. The learned counsel contended that from the material on record it appeared that the dead-body of Prabhu Dayal was sent to Hospital at 10 a.m. whereas the report was lodged at 11.00 a.m. wherein it was stated that body was lying in the well. Thus the whole story is doubtful and in view of the material contradictions in the statements of partisan witnesses examined by the prosecution, the appellants could not have been convicted. The learned counsel placed reliance on Mohan Singh v. State of Haryana, (1995 (2) Recent Criminal Reports 66) . Views expressed by Modi in regard to `Vagal Inhibition have also been placed before us to show that vagal inhibition caused sudden cardiac arrest from fright or terror, or it may be caused during a sudden and unexpected fall in the water, often the water striking against the chest and the pit of the stomach. The sudden impingement of unduly cold water on the nasopharynx, can result in vagal inhibition. According to learned counsel the deceased might have died due to sudden cardiac arrest caused by vagal inhibition while jumping into the well. 5. Per contra Mr. Rajendra Yadav, learned Public Prosecutor supported the. impugned judgment of conviction and canvassed that from the point of view of trustworthiness the witnesses produced by the prosecution were rightly believed. According to learned counsel the deceased might have died due to sudden cardiac arrest caused by vagal inhibition while jumping into the well. 5. Per contra Mr. Rajendra Yadav, learned Public Prosecutor supported the. impugned judgment of conviction and canvassed that from the point of view of trustworthiness the witnesses produced by the prosecution were rightly believed. The learned Public Prosecutor further urged that the prosecution has proved the charges against the appellant beyond reasonable doubt and minor contradictions in the statements of the prosecution witnesses should be ignored. 6. We have reflected over the rival submissions. 7. From the evaluation of the evidence the fact situation that emerges may be deduced thus- (i) Informant Mahesh (P.W.2) and Naresh (P.W.7) are the sons of injured witness Ram Singh (P.W. 14). In his deposition Mahesh stated that Sughra inflicted lathi blow on the left leg of Ram Singh and Gyasi gave lathi blow on his left hand. Whereas Naresh deposed that Sughra inflicted blow on the left leg of the Ram Singh by the blunt side of Farsa. So far as injuries caused to Prabhu Dayal (deceased) are concerned the testimony of Mahesh and Naresh is almost consistent. They stated that Murari and Sughra inflicted Farsa blows from the sharp side on the head of Prabhu Dayal and Badri gave Farsa blow on his thigh. (ii) Ram Babu (P.W.11) is the brother of Ram Singh and Prabhu Dayal. As per his eye witness account Sughra gave a lathi blow on the leg of Ram Singh and Murari inflicted two farsi blows from the sharp side on the head of Prabhu Dayal and Nand Kishore gave a lathi blow on his leg. Murari and Badri pushed Prabhu Dayal in a well. (iii) Ram Singh (P.W. 14) deposed that Sughra inflicted Farsa blow from the blunt side on his left leg and Gyasi also caused injuries from blunt side of Farsa on the different parts of his bodies. He did not see as to what had happened to Prabhu Dayal. He was not in a position to stand because of the leg injury. He further stated that SHO came to the Hospital same day and recorded his statement. (iv) Ramesh Cljand (P.W. 15) stated that Sughra gave lathi blow on the leg of Ram Singh. He did not see as to what had happened to Prabhu Dayal. He was not in a position to stand because of the leg injury. He further stated that SHO came to the Hospital same day and recorded his statement. (iv) Ramesh Cljand (P.W. 15) stated that Sughra gave lathi blow on the leg of Ram Singh. In ragard to the injuries sustained by Prabhu Dayal, this witness deposed that those were caused by Murari, Sughra and Badri by lathies and Farsas. Badri son of Bhagwan and Munshi were standing. Murari and Badri pushed Prabhu Dayal in a well. (v) Mahesh (P.W.2) in his cross examination stated that the dead-body of Prabhu Dayal was taken to Sepau in a truck at about 10 a.m. (vi) No weapon of offence was recovered by the investigating officer at the instance of the accused. (vii) Raghuveer Singh (P.W.16) stated that he investigated the case. He did not find blood at the place of occurrence. He did not go to the Hospital where Ram Singh was admitted. He recorded the statement of Ram Singh after he was discharged from the Hospital. (viii) Ram Naresh Incharge out post (P.W.13) in his cross examination stated that when he was passing through village Indoli, Mahesh came to him and said that his brother was dead and his dead body was lying in a well. Written report was handed over to him at around 11 a.m. He got the dead body removed from the well and drew inquest report Ex.P.5. When the inquest report was drawn case under section 325 I.P.C. was made out from the contents of 'Tehrir' therefore section 325 was written at the top of the inquest report. (ix) According to Post Mortem Report (Ex.P.1) the deceased Prabhu Dayal sustained following antimortem injuries - (1) Lacerated wound with swelling 4 cm. 1/2 cm. x bone deep on right parieto temporal region 6 cm. away from Rt. Pinna. (2) Lacerated wound with swelling 2 cm. x 1/2 cm. x below deep on left parieto temporal region 8 cm. away from left Pinna. (3) Abrasion with swelling 5 cm. x 4 cm. on right thigh. (4) Blue eye 5 cm. x 4 cm. on lateral part of left eye inverting below eye lid. (5) Lacerated wound 11/2 cm. x I cm. x muscle deep on the lateral aspect of left thigh middle ⅓ part. away from left Pinna. (3) Abrasion with swelling 5 cm. x 4 cm. on right thigh. (4) Blue eye 5 cm. x 4 cm. on lateral part of left eye inverting below eye lid. (5) Lacerated wound 11/2 cm. x I cm. x muscle deep on the lateral aspect of left thigh middle ⅓ part. The Medical jurist opined that due to fracture of right parieto temporal bone of skull leading to hemorrhages and shock, the death was caused. (x) Dr. Suresh Chand Mangal (P.W.1) in his examination deposed that the injuries sustained by the deceased could have been caused in the process of fall in the well by colliding with the wall of the well. Dr. Mangal further stated that he did not find any water in the lungs of the deceased. (xi) As per injury report (Ex.P.2) of Ram Singh, there was swelling with tenderness measuring 17 cm. x 6 cm. on the lower end of lateral part of his left leg. (xii) At the item No. 11 of the site plan (Ex.P.4) it has been stated that as the crop was standing in the field and there was sand, the blood could not be found. (xiii) At the top of memo of inquest report (Ex.P.5) following remark has been mentioned- "panchayatnama in regard to case No. 30/88 sections 147, 148, 149, 323, 325 I.P.C.Police Station Sepau under section 174 Cr.P.C. dated 24.2.88." (xiv) Nand Kishore, Gyasi and other 12 persons named in the written report by the informant Mahesh were exonerated by the investigating officer and charge sheet against them was not filed. Even the prosecution did not make attempt to assail the act of the investigating officer in not filing charge sheet against the said fourteen persons. (xv) Chhidu (P.W.3) is the owner of well from where the dead body of Prabhu Dayal was recovered. He deposed that Prabhu Dayal himself jumped into the well. He was declared hostile. Rajju (P.W.4) is also the owner of the well. He did not support the prosecution story. 7. After deeply going through the evidence of Mahesh (P.W.2), Naresh (P.W.7), Ram Babu (P.W.11), Ram Singh (P.W.14) and Ramesh Chand (P.W.15) we find a diametrically contrary assertion between their testimony. He was declared hostile. Rajju (P.W.4) is also the owner of the well. He did not support the prosecution story. 7. After deeply going through the evidence of Mahesh (P.W.2), Naresh (P.W.7), Ram Babu (P.W.11), Ram Singh (P.W.14) and Ramesh Chand (P.W.15) we find a diametrically contrary assertion between their testimony. Ram Singh who is the injured eye witness stated that appellant Sughra inflicted Farsa blow from the blunt side on his left leg whereas his son Mahesh and brother Ram Babu deposed that Sughra gave blow on the left leg of Ram Singh with lathi. Ramesh Chand also stated that injury on the leg of Ram Singh was caused by Sughra with lathi. Similarly the injuries on the head and thigh of Prabhu Dayal have been attributed by Mahesh and Naresh to the appellants Murari and Sughra from the sharp side of Farsa and injury on thigh to Badri also from the sharp side of Farsa. Whereas according to Ram Babu it was appellant Murari who inflicted both the blows on the head of Prabhu Dayal from the sharp side of Farsa and Nand Kishore inflicted lathi blow on his leg. According to the post mortem report (Ex.P1) the deceased Prabhu Dayal did not sustain any injury caused by the sharp edged weapon. Dr. Suresh Chand Mangal (P.W.1) who conducted autopsy on the dead body, categorically stated that all the injuries sustained by the deceased caused by the blunt weapon. Injured eye witness Ram Singh (P.W.14) deposed that he did not see as to how the injuries were caused to Prabhu Dayal. Witness Ramesh Chand gave a vague statement. He did not attribute any specific role to the appellants. He was not named in the F.I.R. The independent witnesses, though examined by the prosecution yet they did not support the prosecution story The prosecution is left with the testimony of two nephews Mahesh and Naresh, two brothers Ram Babu and Ram Singh and one Ramesh Chand. We only find the presence of Ram Singh at the place of occurrence natural. It is absolutely difficult to accept the testimony of Mahesh (P.W.2), Naresh (P.W.7), Ram Babu (P.W.11) and Ramesh Chand (P.W.15). In view of material contradictions in their testimony we are left with the impression that they were not present at the time of occurrence. We have tested their evidence from the angle of human probabilities also. It is absolutely difficult to accept the testimony of Mahesh (P.W.2), Naresh (P.W.7), Ram Babu (P.W.11) and Ramesh Chand (P.W.15). In view of material contradictions in their testimony we are left with the impression that they were not present at the time of occurrence. We have tested their evidence from the angle of human probabilities also. They did not make any attempt to intervene though they were four in number and armed with cutting instruments. The truth and falsehood are so inextricably intertwined together in their testimony that it is not possible to disengage the truth from the falsehood. The evidence of Dr. Suresh Chand Mangal (P.W.1) gives a death knell to the prosecution case when he says that all the injuries sustained by the deceased were caused by the blunt weapon. The medical testimony falsify the ocular evidence of Mahesh, Naresh and Ram Babu who deposed that Murari, Sughra and Badra inflicted Farsa blows from the sharp side on the head and thigh of Prabhu Dayal. 8. We have also noticed a few disturbing features of the case. The investigating officer failed to recover any weapon alleged to have been used in the commission of offence. In the inquest report (Ex.P.5) though F.I.R. number is correctly written but yet reference of section 302 I.P.C. is missing. Only reference of section 325 I.P.C. and 174 Cr.P.C. is given. It appears that enquiry in respect of death of Prabhu Dayal was initiated under section 174 Cr.P.C. whereas the investigation of criminal case under section 325 I.P.C. is in respect to injury caused to Ram Singh was commenced. H.C. Ram Naresh (P.W. 13) in his cross examination categorically stated that on the basis of contents of `Terrier he incorporated section 325 I.P.C. This `Tehrir was not placed on record by the prosecution and we are left with the impression that the prosecution has not placed the true version with regard to time of recording the first information report. Our impression also finds strength from the statement of Mahesh who stated in the cross examination that the dead body of Prabhu Dayal was taken in a truck about 10 a.m. whereas the written report is alleged to be given to Ram Naresh at 11 a.m. Wherein it was stated that dead body was lying in a well. 9. That takes us to the argument advanced by the learned Senior Counsel Mr. 9. That takes us to the argument advanced by the learned Senior Counsel Mr. Bajwa with respect of `Vagal inhibition. Modi in the Medical Jurisprudence wrote that "Vagal inhibition causes sudden cardic arrest from fright or terror, or it may be caused during a sudden and unexpected fall in the water, often the water striking against the chest and the pit of the stomach. The sudden impingement of widely cold water on the nasopharynx can result in vagal inhibition."Dr. Suresh Chand Mangal (P.W.1) in his cross examination stated that all the injuries sustained by the deceased Prabhu Dayal could be caused by collusion with the wall of the well in the process of falling into well. The contention of Mr. Bajwa learned counsel, is that as the water was not found in the lungs of the deceased, there was possibility that while he made attempt to jump in the well he was alive but on account of the injuries sustained by collusion with the wall, he died on account of sudden cardiac arrest caused by vagal inhibition and this was the reason that the water could not be found in the lungs. In order to appreciate this argument we have closely scrutinised the post mortem report of the deceased Prabhu Dayal. In the said report no where did the medical officer write that the injuries were antimortem in nature. Though in his statement he said so. We are inclined to accept that view of Dr. Mangal, whatever he stated in favour of the accused. 10. The totality of the evidence and collective discrepancies noticed as above by us, do not inspire confidence and creates a serious doubt in the prosecution case. As already stated we only find the testimony of Ram Singh (P.W.14) trustworthy to the extent of role assigned by him to the appellant Sughra and we are of the view that appellant Sughra @ Sughar Singh was rightly convicted under section 325 I.P.C. for having caused grievous injury on the left leg of Ram Singh. His conviction under section 302/149, 148 and 201 I.P.C. and the conviction of other appellants Murari Lal, Badri son Shiv Singh, Badri son of Bhagwan Singh and Munshi Lal under sections 302/149, 148, 201 and 325/149 I.P.C. is illegal and in view of serious discrepancies in the prosecution case they are entitled to benefit of doubt. 11. His conviction under section 302/149, 148 and 201 I.P.C. and the conviction of other appellants Murari Lal, Badri son Shiv Singh, Badri son of Bhagwan Singh and Munshi Lal under sections 302/149, 148, 201 and 325/149 I.P.C. is illegal and in view of serious discrepancies in the prosecution case they are entitled to benefit of doubt. 11. In the result the appeal of Murari Lal, Badri s/o Shiv Singn, Badri s/o Bhagwan Singh and Munshi Lal is allowed and their conviction and sentence under sections 302/149, 148, 201 and 325/149 I.P.C. vide impugned judgment dated August 21, 1995 shall stand set aside. The appeal of appellant Sughra @ Sughar Singh stands partly allowed, his conviction and sentence under section 325 I.P.C. is confirmed but the conviction and sentence under sections 302/149, 148 and 201 I.P.C. is set aside. Under section 325 I.P.C. appellant Sughra @ Sughar Singh was convicted to undergo five years Rl and fine of Rs. 200/- in default to further undergo three months simple imprisonment. Sughra @ Sughar Singh is in jail for a period of more than six years. Appellants Murari Lal and Badri s/o Shiv Singh are also in jail. All the three appellants Sughra @ Sughar Singh, Murari Lal and Badri s/o Shiv Singh shall be released forthwith if not required in any other case. Appellants Munshi Lal and Badri s/o Bhagwan Singh are on bail, they should not surrender and their bail bonds stand discharged. *******