JUDGMENT 1. - Three accused persons namely Hari Prasad, Tara Chand and Om Prakash were put for trial before the Special Additional Sessions Judge (Woman Atrocities), Sri Ganganagar on the charge of murder of Mst. Mangi Devi and Phusa Ram. The fourth accused namely Sita Ram was separately tried in accordance with the Juvenile Justice Act, 1986. Appellants Hari Prasad and Tara Chand have been convicted for offence under Sections 302/34, 120B and 109 I.P.C. and sentenced to imprisonment for life and to pay a fine of Rs. 200/-; in default of payment of fine to further undergo one year rigorous imprisonment vide judgment dated 18.10.2002 passed by the Special Additional Sessions Judge (Woman Atrocities) Cases, Sri Ganganagar. The appellant Om Prakash was similarly convicted and sentenced by the same court but by a separate judgment dated 28.11.2002 as he was absconding. Thus, these three appeals are disposed of by common judgment. 2. The prosecution version as unfolded during the trial is that deceased Mangi Devi an aged widow lived in village Anupgarh. As she was not keeping well her younger brother in law Phusa Ram a resident Rajaldesar was also staying for last one month to look after her. On 18.1.91 P.W. 2 Sampat Ram a neighbour of Mangi Devi informed her son-in-law P.W. 1 Jugal Kishore that the gate of house of Mangi Devi was lying open. Phusa Ram was lying on a cot and there was no response. Hearing the news, PW. 1 Jugal Kishore his wife and son Bhanwar Lal went to the house and found the dead bodies of Phusa Ram and Magni Devi. The information of the incident was lodged by PW. 1 Jugal Kishore at Police Station, Anupgarh vide Ex P1. The informant also stated that Phusa Ram was having two wives. His sons from the firs wife were not happy with him. As such he expressed his suspicion on his sons from the first wife. During the investigation police recovered a blood-stained knife in pursuance of the information given by appellant Om Prakash. After usual investigation police laid charge-sheet against the appellants for offence under Sections 302, 120B, 109, 34 I.P.C. The appellants pleaded not guilty and claimed trial. The prosecution adduced oral and documentary evidence. In their statements under Section 313 Cr.P.C. the accused persons denied the correctness of the prosecution evidence appearing against them. 3. We have heard Mr. After usual investigation police laid charge-sheet against the appellants for offence under Sections 302, 120B, 109, 34 I.P.C. The appellants pleaded not guilty and claimed trial. The prosecution adduced oral and documentary evidence. In their statements under Section 313 Cr.P.C. the accused persons denied the correctness of the prosecution evidence appearing against them. 3. We have heard Mr. Mridul Jain learned counsel for the appellants Hari Prasad and Tara Chand and the learned Amicus Curiae Mr. Arjun Singh Rathore for appellant Om Prakash. We have also heard the learned Public Prosecutor and perused the record. The entire case rests on the testimony of the sole eye-witness P.W.7 Manoj Kumar. Before we proceed further to deal with the evidence of P.W.7 Manoj Kumar, we may refer to the medical evidence whereby the prosecution has proved that both the deceased died of the homicidal death. 4. P.W.6 Dr. Ratan Lal has stated that on 18.1.91 he was posted as Senior Medical Officer at Primary Health Centre, Anupgarh. He conducted post-mortem of the dead bodies of Phusa Ram and Mangi Devi vide Ex.P15 & Ex.P16 respectively. As per the post-mortem report Ex.P15 following injuries were found on the dead body of Phusa Ram : 1. Incised wound 3 cm x 1 cm x 1 cm on left hypogastrium. 2. Incised wound 3 cm x 1 cm x 1 cm just below 1st injury on abdomen. 3. Incised wound 2 1/2 cm x 1 cm x 1 cm on left hypogastrium near No. 2. 4. Incised wound 3 cm x 1 1/2 cm x 1 cm on left hypogastrium on same line laterally. 5. Incised wound 2 cm x 1 cm x 1 cm on left hypogastrium. 6. Incised wound 3 cm x 1 cm x 3/4 cm on left mid jaw. 7. Incised wound 3 cm x 2 cm x 2 cm on right hip on its lateral aspect. 8. Penetrating wound 4 cm x 1 1/2 cm X lung keep on left chest 3 cm below left breast passing through lower lobe of left lung and 45 parietal & visera pleura of left side with collection of dark clotted blood inside. 9. Penetrating wound 3 cm x 1 1/2 cm x lung deep 3 cm above left breast, bisecting the pleura & lung of apical are left with collection of dark blood. 10. 9. Penetrating wound 3 cm x 1 1/2 cm x lung deep 3 cm above left breast, bisecting the pleura & lung of apical are left with collection of dark blood. 10. Incised wound 2 cm x 1 cm x 1 cm on left chest just below left clavicle on its middle part. 11. Incised wound 3 cm x 2 cm x 1 cm on left side of neck. In the opinion of the doctor Phusa Ram died of shock and haemorrhage due to multiple injuries. 5. The doctor also found following injuries on the person of Mst. Mangi Devi vide Ex. 16 : 1. Incised wound 2 cm x 1 cm x 1 cm on left axilia. 2. Penetrating wound 3 cm x 1 cm x lung deep on left breast injuring left front of pleura & middle lobe of left lung 3. Penetrating wound 2-112 cm x 1 cm x lung deep on left chest just below left breast in 6th i.e. Space, causing injury to left pleura & left lung on its lower lobe with clotted blood collection. 4. incised wound 2 cm x 1 cm x 1 cm on lateral aspect of left abdomen. 5. Incised wound 3 cm x 1 cm x 1/2 cm on inside of left arm. 6. Incised wound 2 cm x 1 cm x 1/2 cm on outside of left arm. 7. Incised wound 3 cm x 1 cm x 3/4 cm on left elbow. All the injuries were found to be ante mortem in nature. In the opinion of the doctor Mst. Mangi Devi died of shock and haemorrhage due to injuries on lung. 6. Reverting to the other ocular evidence P.W. 1 Jugal Kishore is the son-in-law of deceased Mangi Devi. He stated that Mat. Mangi Devi was having four daughters and no son. She was living in extreme poverty. Deceased Phusa Ram was his uncle-in-law and younger brother-in-law of deceased Mangi Devi. Mst. Mangi Devi had fallen ill for quite some time. As such Phusa Ram stayed with her for about last one month from the date of incident. On the fateful day her neighbour P.W.2 Sampat Ram informed him that the house of Mst. Mangi Devi was seen open. The dead body of his uncle-in-law Phusa Ram was lying on the cot. He along with his wife and son Bhanwar rushed to the spot. On the fateful day her neighbour P.W.2 Sampat Ram informed him that the house of Mst. Mangi Devi was seen open. The dead body of his uncle-in-law Phusa Ram was lying on the cot. He along with his wife and son Bhanwar rushed to the spot. They found Mangi Devi and Phusa Ram dead. An Information of the incident was given to the police on the basis of which 30 First Information Report Ex.P1 was registered. He further stated that Phusa Ram was having two wievs. The sons of the first wife were unhappy with him. 7. P.W. 2 Sampat Ram is the neighbour of deceased Mangi Devi. He came to know about the death of Mst. Mangi Devi in the morning of 18.1.91. There was no response from the house of Mst. Mangi Devi. He immediately informed of the incident to PW.1 Jugal Kishore. 8. PW.3 Santosh Kumar is the son of deceased Phusa Ram. He stated that his deceased farther was having two wives namely Sulochna and Durga. His aunty deceased Mangi Devi was having four daughters and no son. As such he was adopted by her about a year back. Mst. Sulochna the elder wife of his father was not happy with the adoption. He further stated that his elder mother namely Sulochna was deserted by his father. He also stated that his elder mother namely Sulochna was blessed with two daughters and three sons. Mst. Chanda the daughter of Sulochna had developed liking for accused Om Prakash, which was opposed by deceased Phusa Ram. 9. P.W.4 Shyam Lal and P.W. 9 Pita Ram are the witnesses of extra judicial confession. Both the witnesses have not supported the prosecution case during trial and as such they were declared hostile. 10. P.W.7 Manoj Kumar has been examined as an eye witness of the incident. He stated that he was undergoing training for computer course at Bikaner at the time of the incident. He used to daily commute between Rajaldesar and Bikaner. He was known to Om Prakash and Hari Prasad. Accused Tara Chand was introduced by Om Prakash. On the platform Om Prakash and Hari Prasad were talking standing at a distance. Before boarding the train Hari Prasad told Om Prakash that they have to complete the work of Phusa Ram and collect money. He was known to Om Prakash and Hari Prasad. Accused Tara Chand was introduced by Om Prakash. On the platform Om Prakash and Hari Prasad were talking standing at a distance. Before boarding the train Hari Prasad told Om Prakash that they have to complete the work of Phusa Ram and collect money. Han Prasad stayed back and Om Prakash, Tara Chand and Site Ram boarded the train. On the request, of Om Prakash he got down at Dungargarh. Thereafter he refused to accompany them further. But on the repeated requests he joined them for going to Anupgarh in the Bus. They reached Anupgarh at 7.00 P.M. Om Prakash inquired about the house of Mst. Mangi Devi. All the four persons reached to the house of Mst. Mangi. There they met with the old lady Mangi and Phusa Ram. On enquiry by the old lady Om Prakash disclosed that they have come in a truck from Rajaldesar, which has been parked at the office of the Truck Union. Deceased Mangi Devi and Phusa Ram served them dinner. After taking dinner all of them went to sleep in a room. In the night at about 3.00 A.M. he heard noise from another room. He got up and knocked the door of the room. He pushed the door. On opening the door he witnessed that appellant Om Prakash inflicting injuries to Phusa Ram by knife. He inquired from Om Prakash as to what he was doing. On this, he was asked to stay back otherwise he will face the same consequence. He further stated that while Om Prakash was inflicting injuries by knife Site Ram and Tara Chand caught hold of Phusa Ram. On intervention by the old lady Om Prakash inflicted injuries to her as well. Taking the chance he ran away from the place of incident. He was being chased by Om Prakash, Tara Chand and Sita Ram. On the way all of them boarded a truck. They got down at Gharsana Purani Mandi. All of them purchased Chapels at Gharsana. He further stated that they had walked for about four hours and then boarded the truck at about 8.00 A.M. They reached Gharsana at about 8.30 A.M. He refused to further accompany them and returned to Bikaner in a Bus. He found that the accused persons also boarded the same but. All of them reached at Bikaner. He further stated that they had walked for about four hours and then boarded the truck at about 8.00 A.M. They reached Gharsana at about 8.30 A.M. He refused to further accompany them and returned to Bikaner in a Bus. He found that the accused persons also boarded the same but. All of them reached at Bikaner. They allowed him to separate at Bikaner. All the accused persons threatened him that if he disclose about the incident to any one he will also face the same consequence. He returned to Dungargarh where his mother was being employed. He narrated the entire incident to his mother. He returned to Rajaldesar along with his mother in a train at about 3.30 PM. He further stated that he could not disclose the fact to any one as he was under a great mental pressure. He further stated that Om Prakash used to visit him off and on. They, threatened not to disclose about the Incident. 11. The main criticism leveled against this witness is that his statement has been recorded by the police after 22 days. The learned counsel has also pointed out serious infirmities and improbabilities in the statement of Manoj Kumar. The learned trial court rejected the criticism against this witness for the reason that he had no enmity with the accused persons. As such there was no reason for him to falsely implicate them. Secondly in his opinion there is no serious infirmity in his statement. Thirdly after the incident he narrated the incident to his mother at the earliest, but he did not disclose to the police as he was under threat. He also found his conduct quite natural in witnessing the incident and then running away from the place of incident. Before we analyse the evidence it is advisable to seek guidance from the decisions of the Apex Court in Ganesh Bhawan Patel v. State of Maharashtra A.I.R. 1979 S.C. Page 135 . A three Judges Bench of the Apex Court observed that delay so in questioning an eyewitness by itself cannot amount to any infirmity in the prosecution case but it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. Thus, the testimony of this witness is required to be scrutinised with great circumspection. Though he has stated that he was known to the accused persons except Tara Chand but it cannot be said that he was in any way close to them. He boarded the train at Rajaldesar for attending computer classes at Bikaner: There was absolutely no reason for him to get down at Dungargarh. Further there was no reason for him to accompany them up to Anupgarh. It is beyond comprehension that the accused persons who had gone to the house of Mangi Devi as per the secret plan to commit the murder of Phusa Ram, would take with them a unconcern person, who could be the eye witness against them during trial. The conduct of this witness is apparently unnatural. Similarly it is difficult to understand as to why this witness who had boarded the train for Bikaner to attend the computer classes, get down at Dungargarh and join the accused persons for Anupgarh. The mother of P.W.7 Manoj Kumar has not been produced to verify the fact that he had disclosed to her about the incident and further he was under a pressure not to disclose the fact to the police. It clearly appears to be case of blind murder. The police having failed to get clue in a double murder case, after 22 days coocked up a false witness P.W.7 Manoj Kumar, to rope in the appellants on mere suspicion. In the facts of the case, delay in recording statement of a witness like PW.7 Manoj Kumar casts a cloud of suspicion on the creditability of the prosecution case. Thus reading of statement of PW.7 Manoj Kumar clearly indicates that the account given by him is not only doubtful but also beyond comprehension of proof. To our mind, the learned trial Judge has committed manifest error in recording conviction of the appellants solely on the testimony of P.W.7 Manoj Kumar. 12. As regards another incriminating circumstances of recovery of knife at the instance of appellant Om Prakash, suffice it to say that the same has not been relied upon by the trial court itself. The appellant Om Prakash was arrested vide Ex.P24. Pursuant to the information given by him vide Ex.P28 the bloodstained knife was recovered vide Ex.P22. It has been found to be stained with human blood as per the FSL Report Ex.28. The appellant Om Prakash was arrested vide Ex.P24. Pursuant to the information given by him vide Ex.P28 the bloodstained knife was recovered vide Ex.P22. It has been found to be stained with human blood as per the FSL Report Ex.28. On seeking the weapon the doctor has stated that the injuries on the persons of both the deceased could not have been caused by the weapon shown to him. The doctor in his cross examination has admitted that if the injuries would have been caused by the knife produced in the court the width of the injuries would have been at the most. 1 cm. Having considered the material on record we are of the view that the trial court has rightly rejected the evidence of recovery of knife. There is no evidence worth the name of conspiracy and abetment as against any of the appellants. Thus, we hold that prosecution has failed to bring home guilt of either of the appellants, beyond reasonable doubt. 13. In view of the aforesaid, we (are) of the view that the trial court has committed error in recording conviction of the appellants in the manner stated above. 14. Consequently, all the three appeals are allowed. D.B, Criminal Jail Appeal No. 18/2003 (Om Prakash v. State ) is allowed and the judgment of the trial court dated 28.11.2002 is quashed and set aside. In case of two other appeals being D.B. Criminal Appeal No. 915/2002 (Hari Prasad v. State ) and D.B.Criminal Appeal No. 944/2002 (Tara Chand v. State ) are allowed and the judgment dated 18.10.2002 is quashed and set aside. All the three accused persons are acquitted of the charges levelled against them. The appellant Om Prakash is in Jail. He shall be released forthwith if not required in any other case. Tara Chand and Hari Prasad are on bail. Their bail Lands stands discharged.Appeal Allowed - Convicted Set Aside. *******