Judgment ( 1. ) APPELLANT Ganraj stands convicted for offence punishable under Section 302, IPC with sentence of imprisonment for life vide impugned judgment dated November 10, 1990, passed by the Addl. Sessions Judge, Multai, District Betul, in Sessions Trial No. 51/89. ( 2. ) APPELLANT/accused is the brother of deceased. The prosecution case is that on 15-10-88 one Muniraj (P. W. 1) went to his field alongwith his wife Smt. Kashi Bai for harvesting the paddy crop. At about 11. 30 A. M. Kashi Bai went towards her well to fetch water. She found a dead body lying in the well. She informed her husband about the presence of the dead body in the well. Muniraj also went there and saw the dead body in the well. He could not identify the dead body. He informed about the presence of the dead body to certain persons who were ploughing in the neighbouring fields. He rushed to Village Angariya and informed Kotwar Kunwar Lal about the presence of the dead body in his well. He also searched the Sarpanch to inform him about the body but he could not be traced. Kotwar Kunwarlal accompanied Muniraj to the well and saw the dead body. Muniraj alongwith Kotwar went to out post, Bordhi of Police Station, Amla and gave information regarding the presence of a dead body in his well. ( 3. ) MERG was registered at No. 996/88 at out post Bordhi. This merg intimation was sent to Police Station, Amla where Merg No. 50/88 was registered. ( 4. ) ON 16-10-88 Ravendra Prasad Sharma, A. S. I. (P. W. 7) went to the place of occurrence and recorded Dehati Nalishi (Ex. P-21 ). Inquest was conducted on the dead body of Ramsingh as per Ex. P-3. Spot map (Ex. P-1) was also prepared by Ravendra Prasad Sharma. The dead body was sent to Primary Health Centre, Amla, for post-mortem examination alongwith requisition (Ex. P-22 ). The post-mortem examination was conducted by Dr. B. Singh (P. W. 9) Block Medical Officer, Primary Health Centre, Amla on 16-10-88 who found the following injuries on the body of the deceased :- (1) Lacerated wound, 2" x 1/4" x bone deep on the left parietal region; (2) A lacerated wound 4" x 2" x bone deep, there was a fracture on the temporaral bone; (3) Lacerated wound 2" x 1/4" x muscle deep. Dr. Dr. Singh opined that the cause of death was shock and haemorrhage as a result of fracture of skull, spinal cord and cervical column. He also opined that the injuries found on the dead body were anti mortem. Ex. P-24 is the report of Dr. Singh. ( 5. ) ON 16-10-88 Brij Bhushan Singh (P. W. 8) seized a bullock cart from the possession of Hira Chand vide Ex. P-13. One machh made of bamboo which is kept on the bullock cart was also seized as per Ex. P-15. At the instance of appellant, an axe was seized vide Ex. P-8. 11 pieces of sticks of bamboo (kamchi) were also seized at the instance of appellant vide Ex. P-10. A tadu was seized from Hira Chand vide Ex. P-9. ( 6. ) IT is also the prosecution case that on October 10, 1988 Shiv Shanker (P. W. 3) and Gurdi (P. W. 5) went towards the pond of the village for a walk and when at about 9 - 9. 30 P. M. they were returning from the side of the house of the appellant, they saw deceased Ramesh beating his mother with a broom in the Usari. At that moment, appellant Ganraj armed with an axe appeared at the place of occurrence and gave an axe blow on the neck of deceased Ramesh. He dealt another axe blow from its blunt side. Due to fear these witnesses did not interfere. As deceased Ramesh was friend of these witnesses, on the next day they again went to the house of deceased and enquired the whereabouts of Ramesh from his father who expressed ignorance about the deceased. Subsequently, they informed the police regarding the same. ( 7. ) IT is alleged that appellant and his father Hirachand took the dead body of Ramesh in the bullock cart and threw the same in the well of Muniraj. ( 8. ) AFTER completion of the investigation, a challan was filed for the offence punishable under Sections 302 and 201 of the IPC against the appellant and under Section 201 of the IPC against co-accused Hirachand who was the father of appellant. The case was committed to the Court of Session. ( 9. ) THE learned Addl. Sessions Judge, Multai, framed charges under Sections 302 and 201, IPC against the appellant and under Section 201, IPC against Hirachand. The case was committed to the Court of Session. ( 9. ) THE learned Addl. Sessions Judge, Multai, framed charges under Sections 302 and 201, IPC against the appellant and under Section 201, IPC against Hirachand. Both the accused abjured their guilt and pleaded that they are innocent and have been falsely implicated. During trial Hirachand died and the case abated against him. ( 10. ) AFTER concluding the trial, the learned Addl. Sessions Judge found the appellant guilty for committing the murder of Ramesh and, accordingly, vide impugned judgment and order convicted and sentenced him as indicated above. However, the Trial Court did not find the appellant guilty under Section 201, IPC and acquitted him of that offence. It is against this judgment and order of conviction the appellant has come up in this appeal. ( 11. ) WE have heard Shri S. C. Datt, learned Senior Counsel appearing for the appellant and Shri S. K. Gangrade, learned Counsel, appearing for the State. ( 12. ) SHRI Datt, learned Counsel, appearing for the appellant has led us through the record and contended that the learned Sessions Judge has erred in holding the appellant guilty for committing the murder of deceased Ramesh. ( 13. ) AS against this, learned State Counsel has supported the judgment of the Trial Court and submitted that the conviction and sentence awarded to the appellant by the Trial Court are perfectly justified. ( 14. ) THE first point for determination is as to whether Ramesh met with homicidal death. Muniraj (P. W. 1) has stated that when his wife Kashi Bai went to her well for fetching water she saw a dead body in the well. His wife informed him about the presence of a dead body in the well. He also saw the dead body in the well. Kotwar of the village was informed about the presence of the dead body in the well and on his information a merg was registered at out post, Bordhi. ( 15. ) RAVENDRA Prasad Sharma (P. W. 7) has stated that he prepared the inquest Panchnama of dead body of Ramesh, vide Ex. P-3. Dr. Singh, who conducted the post-mortem examination on the body of deceased has also stated that he died a homicidal death. In his opinion, deceased died due to shock and haemorrhage as a result of injuries on the brain and spinal cord. Dr. P-3. Dr. Singh, who conducted the post-mortem examination on the body of deceased has also stated that he died a homicidal death. In his opinion, deceased died due to shock and haemorrhage as a result of injuries on the brain and spinal cord. Dr. Singh has specifically stated that the injuries found on the dead body of deceased were anti mortem. From this evidence it is clear that Ramesh met with a homicidal death. The learned Counsel appearing for the appellant did not very seriously dispute that the death of Ramesh was homicidal. Therefore, we have no hesitation in holding that Ramesh met with homicidal death. ( 16. ) THIS brings us to the crucial question as to whether the appellant can be held responsible for the homicidal death of Ramesh. Conviction of the appellant is mainly based on the evidence of Shiv Shankar (P. W. 3) and Gurdi (P. W. 5 ). Shivshankar (P. W. 3) has stated in his evidence that along with Gurdi he was coming from the side of the pond, he saw Ramesh assaulting his mother with a lathi. At that time appellant Ganraj who was inside his house came in the Usari where Ramesh was beating his mother and dealt 3 blows of axe on Ramesh from the sharp side and other two blows from its blunt side. ( 17. ) ON the other hand, Gurdi (P. W. 5) has stated that when he was returning from the side of pond along with Shivcharan, appellant dealt only one axe blow on Ramesh, who was beating his mother with a broom. ( 18. ) AFTER carefully scrutinizing the evidence of these witnesses, we are firmly of the opinion that they are not the truthful witnesses. Their evidence does not inspire confidence. ( 19. ) THEIR evidence regarding the source of light can not be believed. Shivshankar (P. W. 3) has stated that it was dark night and earthen lamp (Diya) was the only source of light in the ausari while Gurdi (P. W. 5) has stated that he witnessed the incident in the light of the lantern. This witness has admitted that this lantern was the only source of light and if the lantern would not have been there he could not have seen the incident. This witness has admitted that this lantern was the only source of light and if the lantern would not have been there he could not have seen the incident. Apart from this material contradiction, the presence of Diya or lantern at the scene of occurrence was not disclosed in the statements of these witnesses recorded under Section 161, Cr. PC. The fact of source of light was disclosed for the first time at the time of the evidence in the Court. Shivshankar (P. W. 3) has also admitted that he can not say whether Ramesh received any bleeding injury because there was no light. ( 20. ) FROM all this material, it appears to us that there was no light at all in the ausari. In any case, there was no sufficient light. ( 21. ) NEXT circumstance which makes the evidence of Shivshankar and Gurdi doubtful is that Shivshankar (P. W. 3) had admitted that the house of appellant where the incident took place is surrounded by many houses. Had the incident occurred in the manner stated by Shivshankar and Gurdi neighbours also must have heard the cries of mother of the deceased and also that of Ramesh, but no person from the neighbourhood had come forward to support the prosecution case. ( 22. ) FURTHER, both these witnesses reached at the place of occurrence by chance. They were casually strolling and had no work to go towards that side. They were chance witnesses. If by co-incidence or chance a person happens to be at the place of occurrence at the time of incident, he is called a chance witness. The testimony of a chance witness alone is ordinarily not sufficient to form the basis of conviction. His evidence is viewed with suspicion and does require cautious and close scrutiny. Judged on this touchstone, the evidence of Shivshankar and Gurdi can not be relied upon. ( 23. ) MOREOVER, the conduct of these two witnesses is also quite unnatural. Admittedly, deceased was their friend. If they would have seen the appellant dealing axe blows on the deceased their natural conduct would have been to interfere in the matter. If they would have really seen the incident, they would have naturally informed the villagers or at least their own family members regarding the same. But they admittedly did not tell anybody regarding the incident. ( 24. If they would have really seen the incident, they would have naturally informed the villagers or at least their own family members regarding the same. But they admittedly did not tell anybody regarding the incident. ( 24. ) BOTH these witnesses disclosed to the police regarding the incident for the first time after a long delay of five days. This delay throws a great deal of doubt on their evidence. When there was delay and the hesitation in conveying to the Investigating Officer the names of the appellant, it becomes difficult to maintain the conviction on their evidence alone. ( 25. ) ACCORDING to these witnesses the incident occurred on 13-10-88 and they informed the police on 18-10-88. When the dead body of Ramesh was taken out from the well, on 16-10-1988, both these witnesses were admittedly present but at that time they did not narrate to the police officer concerned about the incident. If a person who is an important witness does not open his mouth for a long time his evidence is always looked with suspicion. In State of Orissa v. Mr. Brahmanand Nanda ( AIR 1976 SC 2488 ) it has been held that a witness who witnesses the crime of murder and keeps quiet for one day, is not a reliable witness. In view of this judgment, in the facts and circumstances of the present case the evidence of Shivshankar and Gurdi can not be relied upon. In the light of the settled criminal jurisprudence of this country the learned Additional Sessions Judge ought to have rejected the evidence of Shivshankar and Gurdi outright. ( 26. ) SHIVSHANKAR (P. W. 3) has stated that police called him at police station continuously for four days. He felt that police was suspecting him. He also deposed in Para 16 of his deposition that police had suspected him and Gurdi for the murder of Ramesh because Hirachand, father of Ramesh had reported against him and Gurdi in connection with murder of Ramesh as Ramesh was their friend and often used to remain in their company. ( 27. ) IN Para 17 of his deposition the witness has stated that after 3-4 days of the incident when the police officers threatened him and Gurdi they made statements to the effect that they had seen Ganraj, the appellant, assaulting Ramesh. ( 27. ) IN Para 17 of his deposition the witness has stated that after 3-4 days of the incident when the police officers threatened him and Gurdi they made statements to the effect that they had seen Ganraj, the appellant, assaulting Ramesh. In this background, the evidence of the alleged eye witnesses appears to be incredible. ( 28. ) THE evidence of these eye-witnesses is belied by the medical evidence. According to Dr. Singh, Ramesh had no injury which could be caused by sharp side of the axe. He had received only lacerated wounds and no incised wound. Further there is contradiction in the evidence of these two witnesses regarding number of blows dealt on Ramesh. The learned Trial Judge had observed in Para 35 of the judgment that Shivshankar (P. W. 3) has stated that axe was used from the blunt side. This observation is factually incorrect. Shivshankar (P. W. 3) has clearly stated that one blow was given from the sharp side and other blows were given from blunt side of the axe. Gurdi (P. W. 5) has not stated that any injury was cased from the blunt side. ( 29. ) ANOTHER reason for discarding the prosecution case is that it is guilty of withholding material and natural eye witness of the incident. According to the prosecution deceased Ramesh was beating his mother with Danda or broom and in that situation when mother started shouting, appellant came out from the house and gave blows to the deceased. In this context, mother of the deceased would have been the best person to depose regarding the incident. She is a material witness, but has not been examined by the prosecution. It is on the evidence of two infirm witness, namely, Shivshankar and Gurdi that the learned Trial Court convicted the appellant. It is a trite law that one infirm witness can not corroborate another infirm witness (See Muluwa and Ors. v. State of M. P. , AIR 1976 SC 989 ). ( 30. ) PROSECUTION has also relied on the recovery of certain articles at the instance of the appellant and his father Hirachand against whom the case has been abated. An axe and kamchis (sticks of mach which is kept on the bullock cart), were seized at the instance of the appellant. ( 30. ) PROSECUTION has also relied on the recovery of certain articles at the instance of the appellant and his father Hirachand against whom the case has been abated. An axe and kamchis (sticks of mach which is kept on the bullock cart), were seized at the instance of the appellant. According to the report of Assistant Director, F. S. L. , Sagar, the blood was found on these articles. But there is no evidence to the effect that same was human blood and its blood group was that of the deceased. ( 31. ) THE Trial Court also convicted the appellant only on the basis of ocular evidence and did not rely on the seizure of the articles at the instance of the appellant. ( 32. ) ON the basis of above discussion, we find that the evidence of Shivshankar and Gurdi is suspicious. It appears that the incident was not seen by them. All these aspects discussed above, did not receive attention of Trial Court. We are, therefore, firmly of the view that on the set of evidence available, the appellant can not be held guilty for the offence of murder. ( 33. ) FOR the foregoing reasons, the appeal is allowed and the judgment of the Trial Court is set aside. The appellant is acquitted of the charges framed against him. He is on bail. His bail bond and surety bond shall stand discharged.