JUDGMENT 1. - By this appeal the three appellants, who are father, son and the third appellant being the wife of second appellant, the son, seek to challenge their conviction under Section 302/34 and Section 324/34 I.P.C. recorded by the Addl. Sessions Judge No. 2, Sriganganagar vide his judgment dated 27.4.2000, passed in Sessions Case No. 10 of 1998. The appellants have been sentenced to imprisonment for life with a fine of Rs. 2000/-, in default of payment of fine to further undergo two months Simple Imprisonment, and to imprisonment for a period of one year for the aforesaid offences respectively. 2. Brief facts of the case are, that on 7.7.98, the statement of Prahlad Singh (Parcha Bayan) was recorded by P.W. 7, incharge of Police Station Sardul Sahar at 5.45 P.M., in the hospital, to the effect that in the morning the deponent along with his father Balbir had gone to their field in Chak being 7SDS Rohi to sow Guar, and had sown Guar. It was alleged that adjoining their land is situated the land of his uncle Maiya Ram (appellant). It is further alleged that many years ago there was a dispute between the deponent and the uncle, about partition of the land. With this background it was alleged that at about 3.30 in the noon, the accused Maiya Ram and Jeet Ram had sown Guar in one portion of the informant's field. The tractor was driven by Jeet Ram. It was alleged that there is a dispute regarding the boundary between the deponent and Maiya Ram. In that view of the matter the father of the informant went to the boundary of the field, and scolded to Maiya Ram, whereupon the four accused person, being Maiya Ram, Jeet Ram, Nanki daughter of Maiya Ram and wife of Jeet Ram, came on the boundary duly armed with weapons. Maiya Ram was armed with Gandasi, Jeet Ram with Takua, Nanki with Kasiya, and wife of Jeet Ram (Rani) with axe. The deponent was busy in sowing Guar. According to the deponent, all the accused persons immediately started inflicting injuries on the father of the informant with respective weapons. On hearing the cries, the deponent went there, and found that all the accused persons were indiscriminately showering blows with their respective weapons. The deponent was busy in sowing Guar. According to the deponent, all the accused persons immediately started inflicting injuries on the father of the informant with respective weapons. On hearing the cries, the deponent went there, and found that all the accused persons were indiscriminately showering blows with their respective weapons. He intervened thereupon all the four accused persons inflicted injuries by the respective weapons on various parts of his body also. It was alleged that on account of injuries his father Balbir Singh had died on the spot, he rushed to the Government Hospital Sardul Sahar, and got himself admitted. The incident was alleged to be witnessed by Veeru Ram and Makhan Singh, The neighbours. On this report a case under Section 302, 307 and 34 I.P.C. was registered. After investigation the police filed charge sheet against the three appellants only, and the investigation did not find Nanki to be there on the spot. 3. The learned Magistrate committed the case to the Court of Sessions Judge, Sri Ganganagar, wherefrom it was transferred to the learned trial court. The learned trial court framed the charges for the offences under Sections 302, 307, 323, 324 and also in the alternative, for all these offences read with Section 34 I.P.C. The accused persons denied charges and claimed to be tried. The prosecution examined 7 witnesses. The accused persons in their statement under Section 313 Cr.P.C. adopted the stand of denial, however they did not lead any evidence in defence. The learned trial court after completing the trial convicted and sentenced the accused persons as above. 4. Assailing the impugned judgment, it has been contended by the learned counsel for the appellants, that the prosecution case rests on the evidence of solitary eye witness P.W. 1 Kishan Lal, whose evidence Is unreliable, as the version given by him does not find corroboration. It is also contended that, if the story as alleged by P.W. 1 were true, then the prosecution party must be aggressor, and would have attacked accused persons, that is why there are some injuries on the person of the accused. It was then contended that the witness has also implicated Nanki, while it has not even been found by the investigation that she was involved in the incident. It was then contended that the witness has also implicated Nanki, while it has not even been found by the investigation that she was involved in the incident. It is difficult to know as to what is the exact version, as there are every chances of false implication of the accused persons. It is also contended that independent witness being Makhan, Ramswaroop and Veeru Ram despite being shown in the list as witness by the prosecution have not been produced, thus the independent witness has been withheld from the Court. It is then the contention that, the eye witness is categoric regarding the different weapons, with each of the accused persons, while the recoveries effected from the different accused persons is of wholly different weapons. Summing up the argument it is contended that, the prosecution has not come to the Court with a correct version, and the solitary eye witness has, so inextricably mixed up the truth and falsehood, that in the peculiar facts and circumstances of the case, it is impossible to disengage the two, even if an attempt were to be made to separate the grain from the chaff. Thus the whole version is liable to be thrown out. 5. Controverting the above submission, learned P.P. has supported the impugned judgment, by contending that, the eye witness P.W. 1 is deposing the actual sequence of events as witnessed by him. The witness P.W. 1 is a "branded witness", inasmuch as this witness is having as many as 9 injuries, including serious injuries received in the same incident, and his statement by way of first information report was also recorded in the hospital only. Not only this, as would be clear from the statement of the 1.0., that on receiving telephone he sent the A.S.I. to hospital, who returned and informed that the injured is unconscious, and is therefore not in a position to give statement. Thereafter at 5.30 again he received a telephone, about Kishanlal having gained consciousness, whereupon he went there and recorded his statement, being Ex.P. 1. This is the version about the presence and reliability of this witness P.W. 1. Thereafter at 5.30 again he received a telephone, about Kishanlal having gained consciousness, whereupon he went there and recorded his statement, being Ex.P. 1. This is the version about the presence and reliability of this witness P.W. 1. It is then contended that a look at the post mortem report Ex.P 10 would show that, the deceased has been mercilessly beaten, inasmuch as ostensible injuries have been shown to be seven only, but a bare reading of the description of the injuries itself, shows that the deceased has sustained 17 injuries. It is also contended that the weapons recovered from the accused appellants have been found, by the Forensic Science Laboratory, to be stained with human blood of 'B' Group. Likewise regarding non production of independent witness, it is contended that the witness had been summoned, and were present, but then since they were already won over by the accused side, by being moving specific application they were given up. On this basis it is contended that the appeal be dismissed. 6. We have considered the rival submissions and have gone through the record closely and carefully. 7. Since the prosecution case is sought to be rested on the testimony of eye witness, we feel it better to first deal with the evidence of eye witness. Admittedly on the record, there is a solitary eye witness PW. I Kishan Lal, who is injured as well as, the first informant, and the son of the deceased. We may make it clear that we have to appreciate the evidence of this solitary eye witness, with requisite care and caution, repeatedly propounded by the Apex Court, which is required to be kept in mind by the Court, while appreciating the evidence of solitary eye witness in a murder case. 8. According to this P.W. 1, there was dispute between the parties relating to the 'But' (Boundary) of the field. It is a different story that in Ex.P 1 it was alleged that many years ago there was a dispute between the parties regarding partition of the land, and has then mentioned that there is a dispute between the parties about the boundary of the field. It is a different story that in Ex.P 1 it was alleged that many years ago there was a dispute between the parties regarding partition of the land, and has then mentioned that there is a dispute between the parties about the boundary of the field. With this it is alleged that the witness alongwith his father were sowing Guar with the help of oxen and plough, at that time at around 2.30 PM., the accused Maiya Ram, his soneet Ram, wife of the Jeet Ram, and daughter of Maiya Ram being Nanki came and ploughed the boundary, with' the help of tractor, and had also reploughed one 'Kyara' of Guar sown by them. According to this witness, his father went to the accused persons and scolded, as to why they have reploughed their 'Kyara', thereupon the beating was given with different weapons, by different accused persons. Significantly in this statement, accused Nanki has also been attributed Kasiya, and is also specifically attributed to have caused injuries to the deceased and the witness with Kasiya. He has also deposed that the incident was seen by neighbours Makhan Singh and Ramswaroop. In cross- examination he has deposed that, earlier also there has been a dispute with respect to the boundary some 2-3 times, but then there was no litigation on that count. According to him Kila No. 21 and 22 are being cultivated by Maiya Ram. He has then deposed that Maiya Ram first ploughed Kila No. 21 and 22 with tractor, and thereafter he reploughed with tractor the Guar sown in Kila No. 23. However, in the very next breathe he has deposed that at the time when the accident took place the tractor had already completed the job in Kila No. 23, and was operating in Kila No. 22, while the deceased was carrying agricultural operations in Kila No. 17. He has also deposed that both the ladies were not doing anything and were simply waiting, while Jeet Ram was driving the tractor. He has then admitted that, on the date of incident, before the incident no dialogue took place between the victim and the accused party. He has also deposed that both the ladies were not doing anything and were simply waiting, while Jeet Ram was driving the tractor. He has then admitted that, on the date of incident, before the incident no dialogue took place between the victim and the accused party. He has also admitted that i when Jeet Singh had reploughed, it was not noticed by the witness, as he was ploughing in other direction, and that this was noticed only by the deceased, and the deceased only had gone on the spot. He also admits that the deceased did not challenge from the distance as to why Guar is being reploughed. Then he has deposed that the beating to the deceased was started in Kila No. 23, and the deceased had fallen down on the boundary. He has also admitted that, when he for the first time saw this incident, he was in kila No. 23, and he also did not challenge nor did he call the other witnesses to intervene, nor did the witnesses rush to the spot to intervene. He has also deposed that he alone went to intervene, and in that process when he lied down upon his father, he was also given beating, then he somehow rescued himself and ran away. He has also deposed that he went running to the hospital, and did not lodge any report in the police station, right from the field till hospital none of his relations met him, and that he s reached the hospital at 5 P.M., and some 10-15 minutes after he reached the hospital police had come, and recorded his statement. He has also deposed that when he ran away from the scene the accused persons were continuing to beat his father, though his father had died in his presence. The witness has reaffirmed on being confronted with his police statement regarding various weapon with which different accused persons were armed, and has maintained the stand. He has denied the suggestion about he and his father having gone to the field of Maiya, to forcibly cultivate it, and in that process to have caused injuries to Maiya Ram and Jeet Ram. 9. He has denied the suggestion about he and his father having gone to the field of Maiya, to forcibly cultivate it, and in that process to have caused injuries to Maiya Ram and Jeet Ram. 9. Thus from this evidence the Court is asked to believe, firstly that the boundary between Kila No. 22 and 23 was ploughed, a portion of Kila No. 23, wherein Guar had been sown, was reploughed, four accused persons were involved in the incident, out of which Maiya Ram was armed with Gandasi, Jeet Ram was armed with Takua, Nanki was armed with Kasiya, and wife of Jeet Ram, being Rani was armed with axe, that the beating commenced in Kila No. 23, and the deceased had fallen down on the boundary, so also that after receiving the injuries the witness went running from the spot to hospital, and did not meet any of the relation on the way from field to hospital, I and some 10-15 minutes after he reached the hospital, the police had reached there, and recorded his statement (Ex.P-1). This witness also wants the Court to believe that no injuries were caused to Jeet Singh and Maiya. 10. Admittedly the incident is alleged to be witnessed by independent witnesses, being Makhan and Ramswaroop, as deposed by P.W. 1, and is alleged to have been witnessed by Veeru Ram, Makhan Singh, and Rarnswaroop as alleged in Ex.P 1. Admittedly none of these three witnesses have been examined by the prosecution, rather Veeru and Ramswaroop were dropped by the prosecution on 20.7.99, while Makhan Singh was dropped by the prosecution on 23.8.99. In this background, since, despite Nanki being specifically named as one of the assailants, and is attributed Kasiya, while the investigation did not find her involved in the case, and did not file any challan against her, even after recording the statement of P.W. 1, the learned trial court also did not proceed against her, by exercising its powers under Section 319 Cr.PC., and on the other hand it transpires from the statement of P.W. 2, the brother of P.W. 1, that Nanki was at the house of the accused persons, as according to P.W. 2, at about 4.30 PM. Pooja Devi w/o Kishan Lal informed this P: W. 2, that Maiya Singh and his son Jeet Ram alongwith the wife of Jeet Ram had come from the filed with tractor, and their clothes were smeared with blood, they came to the house, released the cattle, and after closing the door, they, went away. alongwith their daughter Nanki, and other infant children. Likewise, despite four accused persons being attributed the weapons, as mentioned above, being Gandasi, Takua, Kulhari, and Kasiya, and since Nanki was not involved, there was no occasion for Kasiya being there, and no Gandasi or Takua has been recovered by the investigation, rather from Maiya and Jeet Singh also. two Kasiyas have been recovered, which Kasiyas have been found to be stained with human blood of 'B' Group. It puts us on our guards, in accepting the version of P.W. 1 on the face value. Accordingly we feel it proper to look forward, to see as to whether the version propounded by P.W. 1 finds corroboration in material particulars, from the material on record. 11. Starting with the story itself, the cause of origin of the incident is deposed, to be, the accused persons having ploughed the boundary (But) of the land with tractor, and to have reploughed one Kyara of Guar sown by the witness in his field. Admittedly the prosecution persons were ploughing their field with the help of oxen and plough, while the accused party was ploughing the field with the help of the tractor. In this background in the cross examination this witness has clearly admitted that in the first instance Kila No. 21 and 23 were ploughed, then the tractor was ploughed in Kila No. 23, but then he has immediately taken a somersault, by deposing that at the time of incident the tractor had returned to Kila No. 22, after ploughing in Kila No. 23, and has also deposed the beating to have commenced in Kila No. 23, and continued upto the 'But'. Significantly this witness has not precisely identified in the site plan the portion of the 'But' which was ploughed, nor the portion of the Kila No. 23 which was reploughed by the accused party. True it is that this witness was not a witness of the site plan, but then a look at the site plan Ex. Significantly this witness has not precisely identified in the site plan the portion of the 'But' which was ploughed, nor the portion of the Kila No. 23 which was reploughed by the accused party. True it is that this witness was not a witness of the site plan, but then a look at the site plan Ex. P-3 does show that no portion of 'But' between Kila No. 22 and 23 has been shown to have been ploughed. Likewise no portion of Kila No. 23 has been found by the Investigation Officer to have been reploughed. On the other hand it has been mentioned in the site plan, and the site inspection note that Kila No. 22 was ploughed north to south, while Kila No. 23 was ploughed east to west. True it is that there is no rule, or practice as to in what directions the particular land is to be ploughed, when being ploughed with tractor, or with oxen plough, but then when the two fields are ploughed in different directions, it cannot be believed on the face value that, even on reploughing, the same direction of ploughing as it existed earlier, would be retained, as the person reploughing would obviously means to show the reploughed the portion of the land to be in his possession, and therefore would like to plough it in the same direction in which adjoining land has been ploughed, so as to at least appear to be forming part of the same land. Then according to Ex.P 3 and P-3A the dead body is not lying on the 'But', but is lying practically in the mid of Kila No. 22, being that of the accused persons, and no marks of any beating have been found in any part of Kila No. 23. In that view of the matter, the prosecution cannot be said to have proved the 'But' to have been ploughed, or any portion of Kila No. 23 to have reploughed by the accused party, so as to give rise to any occasion to the deceased to scold the accused persons, and resulting into the incident. 12. In that view of the matter, the prosecution cannot be said to have proved the 'But' to have been ploughed, or any portion of Kila No. 23 to have reploughed by the accused party, so as to give rise to any occasion to the deceased to scold the accused persons, and resulting into the incident. 12. As observed above notwithstanding the fact that in Ex.P 1 accused Malya Ram was attributed Gandasi, Jeet Ram was attributed with Takua, Rani was attributed Kulhari and Nanki was attributed the Kasiya, and notwithstanding the fact that, in investigation only Kasiyas were recovered from Maiya and Jeet Ram, the witness maintains, rather reasserts to have not deposed in Ex.D-1 about Maiya and Jeet Ram being armed with Kasiya. It is a different story that in Ex.D-1, the 161 statement of this witness, which was recorded on 8.7.98, in portion 'A to B' Kasiya has been attributed to Maiya and Jeet Ram and at portion 'E to F Kasiya has been attributed. 13. Thus this part of the evidence of P.W. 1, about the accused persons being armed with particular weapons, the 'But' having been ploughed', portion of Kila No. 23 having been reploughed, and Nanki being one of the assailants cannot be believed. In this sequence it is also significant to note that, according to Ex. P-24 and Ex.P- 26, Kasiyas recovered have the blade of 19.5 c.m. and 17 c.m. width, while a look at Ex.P-10, the post mortem report, shows that the dimensions of the incised wounds vary from 4 cm. to 25 cm. In such circumstances, in absence of any evidence being there, to show that such injuries of varying dimensions i.e. 4 cm., 5 cm., 7 cm., 10 cm., 12 cm., 15 cm., and 25 cm. could be caused by these two Kasiyas and Kulhari recovered vide Ex. P-21, having a blade of 3 inch width, we find it not very safe to believe that the alleged incised injuries, were, or could be, caused by the accused persons, in the circumstances, and with the weapons, as alleged by this witness P.W. 1. 14. There is yet another circumstance viz. P-21, having a blade of 3 inch width, we find it not very safe to believe that the alleged incised injuries, were, or could be, caused by the accused persons, in the circumstances, and with the weapons, as alleged by this witness P.W. 1. 14. There is yet another circumstance viz. that the witness categorically disowns any injuries having been caused to Maiya and Jeet Singh, while Ex.D-3 and D-4 are the injury reports of these two accused persons, and looking to the duration of the injuries as mentioned in the reports, the injuries prima facie appear to have been received by them in the same incident. Thus, one of the additional circumstances is that the witness is concealing the injuries of the accused persons. Over and above all this there is yet very glaring circumstance on record, viz. that a look at post mortem report Ex.P-10 shows that, the deceased was having as many as 8 blunt weapon injuries, being multiple abrasions, the length varying from 6 cm. to 15 cm., and it has not at all been shown by the prosecution in any manner whatever, as to how these ante mortem injuries were received by the deceased. 15. Thus what we are pained to find is that notwithstanding the fact that the deceased has received multiple injuries, with sharp edged weapon, this witness P.W. 1 has also received multiple injuries, and thus he can be said to have witnessed the incident, but then the story that this witness has propounded, does not persuade us to believe to be the story that must have happened, i.e. where the incident took place, how it commenced, what was the immediate cause of incident, who were the assailants, what were the weapons, who were the other witnesses to see the incident etc. So much so that the witness wants the Court to believe, that after receiving injuries he went running to the hospital, and 10-15 minutes after his reaching the hospital, i.e. practically immediately on reaching the hospital, the police arrived and recorded his statement, as against which, according to P.W. 7 he received the telephonic message from the hospital at 5 PM., and had sent the A.S.I., who reported the victim (the witness) to be unconscious, and thereafter it was at 5.30 P.M. on receiving another telephonic call, about the witness having gained consciousness, that the witness P.W. 7 went to the hospital and ,recorded the statement. We find from Ex.P-8, that the witness had 5 cm. lone incised wound on the midline of occipital prominence, and had another 10 cm. X 3 X 3 incised wound on the right scapula, apart from another incised wounds as mentioned in Ex.P-8, in that view of the matter it does not stand to reason that the witness would have been in a position to run to the hospital, in the manner he wants this Court to believe, rather he must have been taken to hospital by somebody. 16. In other words, the fact remains that in order to find out as to who the accused were, how the incident originated, and was accomplished, we have to strain, and imagine, rather have to weave out a fresh story, from our own imagination and comprehension, and then seek support to it from such portions of the testimony of P.W. 1, which with great stress, might be attempted to be defined as reliable. In yet other words, as rightly put by the learned counsel for the appellants that the prosecution has so inextricably mixed up the truth and falsehood, as has made it impossible to disengage them by employing the process of separating the grain from the chaff. Since it is not permissible in law for us to adopt the course of reconstructing the prosecution story, we find ourselves to be left with no option, except to throw away the entire prosecution case. 17. The net result of the aforesaid discussion is that we are unable to sustain the conviction of any of the appellants, for any of the offence as recorded by the learned trial court. 18. The appeal is, therefore, allowed. The impugned judgment is set aside. 17. The net result of the aforesaid discussion is that we are unable to sustain the conviction of any of the appellants, for any of the offence as recorded by the learned trial court. 18. The appeal is, therefore, allowed. The impugned judgment is set aside. The appellants are acquitted of all the charges. Appellants Maiya Ram 9 Maiya Singh and Jeet Ram are in custody, they shall be released forthwith, If not required in any other case. Appellant Rani is on bail. She need not surrender, and her bail bonds are cancelled.Appeal Allowed - Conviction Set Aside. *******