JUDGMENT 1. - The learned Sessions Judge, Jalore vide impugned judgment dated 21.9.2000 passed in Sessions Case No. 74/98, has convicted the four appellants for the offence under Section 302 r/w Section 34 IPC, and sentenced them to imprisonment for life, and fine of Rs. 500/-, in default of payment of fine, they have been directed to further undergo three months' rigorous imprisonment. However all the accused persons have been acquitted, of the charge under Section 201 I.P.C. 2. The brief facts of the case are that on 27.9.1998, one Pura Ram (PW-4) lodged a written report at Police Station Sayla, alleging inter alia, that in the morning of that day, his cousin (uncle) Pratap ji told him that dead body of Sakriya is lying on the Chabutra at Baiyasa Ki Jal. The informant is said to have gone there, and found the body to be bearing numberous injuries. He made enquiries, whereupon, Deepa and Fuiya (PW-9 and Pk/V-10) respectively, narrated to him that at about 8.00 last evening, when they were going to the fields, from the village, on the way, when they were at the house of Masriya, the four appellants were giving beating to Sakriya, in the Chok, inside the house. Sakriya was shrieking. It was then alleged that Chatra and Kesa had also witnessed the incident, and the accused persons, on being asked about Sakriya did not given satisfactory reply, and simply commanded to run away. Bansiya is said to have given out that, in the mid night 12.00-1.00 AM, all the four accused persons were seen carrying a person, and on being asked they simply directed the witness to run away. Then all the four persons dropped the body of that person at Bayosa Ka Than and went away. It was also alleged that, on account of previous enmity, Sakriya has been killed. On this report a case under Section 302 IPC was registered. 3. After usual investigation, challan was submitted against all the four accused persons before the learned Magistrate, who committed it to the learned trial court. Learned trial court framed the charges against all the accused persons, for the offence under Section 302 IPC, in the alternative under Section 302/34, and Section 201 IPC. The accused persons denied the charges, and claimed to be tried. 4. Learned trial court framed the charges against all the accused persons, for the offence under Section 302 IPC, in the alternative under Section 302/34, and Section 201 IPC. The accused persons denied the charges, and claimed to be tried. 4. During trial, the prosecution examined some 13 witnesses, and tendered in evidence numerous documents, while the defence also tendered in the evidence four documents and examined two witnesses Khangara and Kolaram. The learned trial court, after completing the trial convicted, and sentenced the accused persons as above. 5. The learned counsel for the appellant assailing the impugned judgment has contended that, the learned trial court has carried in placing reliance upon the evidence of PW-9 and PW-10 Deeparam and Fuiya. According to learned counsel. these witnesses are only chance witnesses, are planted witnesses, and cannot be relied upon. It is also contended that in view of the subsequent conduct of the witnesses also, it is clear that their conduct is wholly unnatural, and have simply come forward to oblige of these witnesses is discarded, or disbelieved, there is absolutely no evidence on record' to support the prosecution, and as such they are entitled to be acquitted. 6. The learned public prosecutor, on the other hand, has supported the impugned judgment, and contended that the evidence of these two witnesses is wholly reliable and natural evidence, they were going to their field, en route, they saw the incident being committed in the house of appellant Masra, simply because they did not narrate it in the morning to other persons, does not adversely effect, either their credibility, or the fact of their having seen the incident. It was also contended that their evidence is further corroborated from the faci that hear the fencing of the house of Masra, a blood stained cloth was recovered, one button, and one Kada of the appellant Masra was also found at the place of incident, which shows that the incident did take place, and did take place at the place alleged. Likewise, weapons of offence have been recovered from all the accused persons, inasmuch as a Duke ( Md ) along with the two sticks used to give music to Duke, have been recovered from accused Jairoopa, while the weapon of offence, being Lathis have been recovered from other three accused persons. Likewise, weapons of offence have been recovered from all the accused persons, inasmuch as a Duke ( Md ) along with the two sticks used to give music to Duke, have been recovered from accused Jairoopa, while the weapon of offence, being Lathis have been recovered from other three accused persons. The cloth found on the fencing, has been found, by the Forensic Science Laboratory to be stained with human blood of "A" group, and the lathis recovered from the other three accused persons have been found to be stained with human blood, and that on the lathi recovered from accused Mobta, the human blood of "A" group was found, which is the blood group of the deceased. It was also contended that, it is clearly established that at the time of committing the incident, the appellant Jairoopa was playing the Duke on a high pitch, so as to ensure that the shrieks of the victim do not remain audible to anybody. 7. We have considered the rival submissions and have closely gone through the record. 8. Since the prosecution rests on the evidence of eye witnesses, we stand better advised to first of all examine the testimony of the eye witnesses, produced by the prosecution. 9. Before starting to look into the evidence of eye witnesses, we may recapitulate that the FIR is lodged by Pura Ram PW-4, who is not an eye witness, and he acquired knowledge about death from Pratapa, who has informed that dead body is lying. Pratapa has not been examined by the prosecution. Be that as it may. 10. According to the informant Pura Ram (PW-4) on receiving information about the dead body being lying, he went to that place, found the dead body lying and bearing injuries. Thereafter, he alleges to have gone at the Chohta of the village, accompanied with Pratapa, where they are alleged to have merit Fuiya and Deepa, who disclosed to him that, at about 8.00 PM, when they were going to their Well, when they reached up to the house of Masra, they heard shrieks coming out of the house, they went up to the Falsa, and saw that in the Chok, all the four persons were beating Sakriya, all the four persons were having lathis, then the witnesses being afraid, went to their field, and did not narrate anything to anybody. Then during further enquiries, the informant is said to have merit Bansiya, who narrated about body being carried. Since the accused persons have been acquitted of the offence under Section 201 IPC, against which acquittal there is no appeal, we need not dilate on that aspect of the evidence. 11. In this background, we find from the record that PW-5, 6, 7 and 8 were also produced by the prosecution, probably as eye witnesses, however, these four witnesses have not supported the prosecution story, and they were declared hostile. PW-5 was confronted with this police statement Ex.P 16, which purports to give the account of the incident as an eye witness, and the same has been disowned by the witness by deposing that he did not give that statement. Significantly, this witness was put certain questions about relationship, and he has deposed that he is not aware if Chatra, Kesa and Pura are descendants of one grand father. Similarly, PW-6 Babusingh has also turned hostile and denied to have given his police statement Ex.P-17, which purports to give the account of-the incident as eye witness. Then PW-7 Chatra has also turned hostile, and has denied to have given his police station Ex.P-18. Likewise, PW-8 Kesa has also not supported the prosecution story and has disowned to have given the police statement Ex.P-19. 12. It is in this sequence that PW-9 Deepa Ram has deposed that 19 months ago at about 8.00 PM, when he was going to his Well from the village, along with Fuiya, when they reached to the house of appellant Masra, they heard the shrikes coming out of the house, then they went up to Falsa, and on peeping inside, they saw that the three accused persons Masra, Phularam and Mobtaram were giving beating to Sakriya by lathis, while the accused Jairoopa was playing Duke. According to him, the witness asked Masra, as to why are they beating, whereupon, Masra asked him to run away at the threat of being meted with the same treatment. Thereupon, both the witnesses went away to their Well. On the next day, both the witnesses came to Chohta, where they met Pura Ram, at that time, Pura Ram was making enquiries from various persons about beating to Sakriya, whereupon they narrated the incident to him. Thereupon, both the witnesses went away to their Well. On the next day, both the witnesses came to Chohta, where they met Pura Ram, at that time, Pura Ram was making enquiries from various persons about beating to Sakriya, whereupon they narrated the incident to him. On that very day, the police people came at about 2.00 PM, in the village, and examined them. Then they were carried to the house of Masra, where a button was found lying in the floor, one blood stained piece of cloth was found lying on the fencing, which was taken into possession, one Kada was also found on the site, which belong to the appellant Masra. Necessary memos were prepared. In cross-examination he has stated that he has no house in the village, and that his Well is at the distance of two kilometers from village. Likewise, Fuiya also does not have any house in the village. He disowned to be having any relationship with the deceased Sakriya. He has clearly admitted that, apart from the cloth, no blood stains were found at any other place. He has clearly pleaded ignorance about existence of any motive. He has also deposed that he did not narrate anything about his having seen the beating, to any of the inmates of the house at the Well, including parents or brother, or wife. He has also deposed that Pura Ram is not in any relation to him. He has also denied the suggestion about his having not seen the incident. 13. PW-10 Fuiya has also deposed in the same manner that, 19 months age at about 8.00 PM, he was going to his Well from the village, along with witness Deepa, and en route when they reached the house of appellant Masra, they heard the shrieks coming out of the house, they went up to the Falsa, and on peeping inside noticed that Sakriya was lying, and appellants Masra, Phuliya, Mobtiya were giving beating to him, while the appellant Jairoopa was playing Duke, so that the shrieks may not audible. He also alleges that they witnesses called Masra, as to why are they beating, but Masra is said to have directed them to go away, else they would also be meted with the same treatment. Then the witnesses are said to have gone to their respective Wells. He also alleges that they witnesses called Masra, as to why are they beating, but Masra is said to have directed them to go away, else they would also be meted with the same treatment. Then the witnesses are said to have gone to their respective Wells. In the next morning when they went to village Chohtta, they found the witness Puriya making enquiries, and they narrated the whole incident to him. Then police people came in the village, to whom also, the witnesses narrated the whole thing, and their statements were recorded. The witnesses were taken to the house of Masra, Police conducted the site inspection, and found the white torn piece of cloth, on which this witness did not notice any stains. A button was found lying on the ground The button and the cloth were taken into possession. One Kada was also found which belonged to the accused Masra, that was also taken into possession and various memos were prepared. 14. In cross-examination, he has denied the suggestion about himself, and the decease,d being grand sons of common grand father. He denied the suggestion about the fathers of himself and Sakriya being brothers. He also stated that he has not house in the village, and he lives along with his family on the Well. According to him, that day, he had gone to village for domestic purchase. According to him, the ladies were performing Graba in the village. Significantly, according to PW-9, Garba were not being performed in that night. It is also stated that usually Garbas are performed up to 2.00 AM in the night. The explanation given by this witness for not narrating the incident to the inmates of the house is that, they did not comprehend the magnitude of the beating, and thought it to be some insignificant scuffle. He has also stated that on the place of the incident, blood stains of the blood of the deceased were lying, (according to PW-9 no such thing was found). He has denied the suggestion of having not seen the incident, and having falsely become a witness. He has admitted that he did not go inside the house of Masra (at the time of incident). He has also stated that he has informed Pura Ram about Jairoopa playing a Duke. 15. He has denied the suggestion of having not seen the incident, and having falsely become a witness. He has admitted that he did not go inside the house of Masra (at the time of incident). He has also stated that he has informed Pura Ram about Jairoopa playing a Duke. 15. As noticed above, PW-5, 6, 7 and 8 had not supported the prosecution story, and they have been declared hostile. PW-9 was specifically put the question in cross examination, to which he has answered that " lkdfj;k esjs dqN ugha yxrk ". Similarly PW-10 in cross examination has tried to deny his being any relation to Sakriya, inasmuch as he has stated that, his grand father is Makna Ji and the grand father of Sakriya and that of the witness is not the same person. The witness has also denied the suggestion by deposing that, the fathers of the two are not brothers. Thus, it is clear that these two witnesses have definitely projected themselves to be having no relations with the deceased. This has been done in an attempt to impress upon the court their reliability, and to ensure that the court does not took their testimony with suspicion, on account of their being relatives. However, the things have turned out to be otherwise, inasmuch as the prosecution witness PW-3 Shakti Dan Singh, in cross examination clearly admitted that, witnesses Pura Ram, (PW-4) Chatra (PW-7), Kesa (PW 8), (Bansiya (PW-12), Pratapa Ram, Fuiya (PW-10), Deepa (PW-9), Jesa etc. are all descendants of a common ancestor (Dada-Pad Dada). Thus, ;t is clear that despite other witnesses turning hostile, the fact remains that the entire prosecution case was sought to be rested on close relative witnesses. We do not mean to say, that merely because they are relative witnesses their evidence is to be discarded. But then, here are the witnesses who are not truthful enough to own their relationship, and are attempting to project a false image of independent before the court. The obvious consequence is, that their evidence is required to be appreciated with care and caution, and we stand better advised not to rely upon their statements in absence of any satisfactory corroboration. The obvious consequence is, that their evidence is required to be appreciated with care and caution, and we stand better advised not to rely upon their statements in absence of any satisfactory corroboration. In this very background, now if we again look at their evidence, even according to them, they depose their presence at the seen on the basis that, they were going from village to their fields and claimed that the house of the accused fell en route. It is admitted position that they have no house in the village. It is not shown as to when they came to the village, for what purpose, and when they left the village. Thus, to say the least, they are proverbially the chance witnesses. With this character of theirs', their subsequent conduct, of not disclosing the incident to any body, including the inmates of their house at their fields, acquires a great significance, more particularly in view of the fact that the victim is their relation. The excuse put forward about their not realising the magnitude of i the incident, loses its significance in view of their relationship with the victim. It clearly appears that they may have tried to disown relationship in an attempt to justify their conduct of not disclosing about the incident, on the ground of not realising the magnitude, but then once it is clear from the prosecution evidence itself, that they are relatives, and nothing is shown that the relations of the witnesses with the victim were, either strained, or at least not cordial, omission on the part of the witnesses to disclose, and simply lie low, speaks volumes about the truthfulness of their version, about seeing the incident, or even about their presence at the scene of occurrence. At this very place, it is also no less significant to note that even according to the witnesses, they did not even try to intervene on seeing the incident. According to them, the time of occurrence was around 8.00 PM, and it being month of September only, it was not much too odd a time, and therefore, either they could intervene, or if they were apprehensive of their safety, in view of accused being four in number, they could have immediately rushed back to the village, for help, and rescuing the victim, who was their close and blood relation. Instead of doing all this, their conduct in silently going away to their field, and peacefully sleeping all over the night, and disclosing about the incident only when they found Pura Ram to be inquiring about it at the Chohta of the village, clearly shows that the year only coming forward to style themselves as eye witnesses. Similarly, in view of the above circumstances, even the small contradictions appearing in their testimony acquires significance, viz. according to PW-9, on the relevant night Garbas were not being performed, while according to PW-10, Garbas were being performed, and are usually performed upto 2.00 AM in the night. PW-10 has also chosen to depose that on the scene of occurrence blood stains were lying, and regarding the place where the dead body was found, he has denied to have seen blood stains, because according to him he was standing at a distance. As against this, PW-9 has deposed that, he did not see any blood on the scene of occurrence, except blood on the cloth. 16. Thus, on an over all appreciation of the evidence we do not fell it safe to rely on the evidence of both the witnesses PW-9 and PW-10 at least in absence of any corroboration. 17. At this place we may observe that the prosecution has purportedly produced the corroborative evidence, of recovery of lathis, so also seizure of piece of cloth said to have been found stained with human blood of "A" group. We therefore now proceed to discuss this evidence. From the reading of the statement of PW-13 Ganpat Singh, and from the perusal of the Malkhana Register Ex. 20, and Ex. 20-A, it transpires that there is some serious discrepancy, as to when the articles were deposited in the Malkhana, and as to when they were sent for Forensic examination. It was argued by the learned counsel for the appellants that, on a close comprehension of the Malkhana Register, it is also not ruled out that, the articles appears to have been deposited in the Malkhana even prior to their recovery, inasmuch as deposited in the Malkhana even prior to their recovery, inasmuch as the Lathi and the Duke were recovered on 6.10.98 or 1.10.98, while they appear to have been deposited in the Malkhana on 27.9.98 or 1.10.98, while some articles are deposited on 5.10.98 i.e. in any case before 6.10.98. It is significant to note that in the evidence of PW-11, he has clearly deposed in the examination in chief itself, that the SHO Ganpat Singh (PW-13) had given five packets in sealed condition to him to be deposited in Malkhana on 1.10.98, 5.10.98 and 27.9.98. It appears that, this discrepancy was attempted to be explained in the statement of PW-13, by deposing that the date 5.10.98 was erroneously mentioned and it should have been 6.10.98. Significantly P.W. 11 was to suggested that the date mention of 5th October was on account of any accidental error, and thus it appears that the PW-13 is trying to salvage the situation, on being faced with the entries in the Malkhana Register. Thus, it is clear that it is not proved beyond reasonable doubt that the articles examined by the forensic Science Laboratory were the same as were either recovered from the accused pursuant to the information given by them under section 27, or found on the spot by the Investigating Officer. Consequently, this Forensic Science Laboratory report does not help the prosecution, in contending that the recovery of blood stained lathis, or the piece of the cloth from the site, corroborates the evidence of the eye witnesses. 18. In this very sequence a look at Ex.P-6 the site plan, and site inspection note, also shows that at the alleged place of incident no blood stains, or any other symptoms depicting happening of any incident, were found. According to post mortem report Ex.P.-13 the deceased was having only one lacerated wound being injury No. 12 rest all injuries were bruises. Therefore, also it does not stand to reason that, all the three lathis or the piece of cloth could be stained with human blood of the same group as that of the deceased. 19. Thus the corroboration sought to be relied upon by the prosecution is not established. With the obvious result that in absence of corroboration in material particulars the evidence of P.W. 9 and 10 does not inspire confidence. 19. Thus the corroboration sought to be relied upon by the prosecution is not established. With the obvious result that in absence of corroboration in material particulars the evidence of P.W. 9 and 10 does not inspire confidence. Likewise significantly in the first report, it was alleged that the victim was done to death on account of old enmity, but then in the entire evidence of even these two witnesses, much less in evidence of Pura Ram, there is no even a whisper about any enmity, which might be existing, on the other hand P.W. 9 has deposed ignorance about existence of any motive. 20. Thus, the net outcome of the aforesaid discussion is that the prosecution has utterly failed to prove, by any reliable evidence, that the appellants were the persons who had committed the crime. Consequently, we find ourselves unable to sustain the conviction. 21. The appeal is, therefore, allowed, the impugned judgment is set aside, and the appellants are acquitted of all the charges. The appellant Jairoopa is on bail, his bail bond stands cancelled, he need not surrender. The other three accused persons, be released forthwith if not required in any other case.Appeal Allowed - Conviction Set Aside. *******