M. C. JAIN, J. Sundan, Pratap and Dhapa alias Dhup Singh were tried before the V Additional Sessions Judge, Agra in S. T. No. 381 of 1980 and came to be convicted for the offences, punishable under Section 302 I. P. C. read with Section 149 I. P. C. and 147 I. P. C. Life imprisonment has been awarded for the former offence and two years rigorous imprisonment to each of them for the latter. The sentences have been directed to run concurrently. During the pendency of appeal, appellant Sundan died and the appeal respecting him abated under order dated 10-12-2003. The Court is presently concerned with the accused-appellants Pratap and Dhapa alias Dhup Singh. 2. The incident occurred on 14-2-1980 at about 2. 00-2. 30 O clock in the night in Mohalla Neem Darwajai Police Station Kotwali, District Agra, Jaite Ram and his wife Govindi were murdered in the incident at their own house. The report was lodged on the same night at 4. 00 a. m. by Mitthan P. W. 11. The deceased Jaite Ram was maternal uncle in-law of his brother. The two deceased were in age group of 70-75 years and were living in their house No. 22/21 situated in Mohalla Neem Darwaja, Agra City. Mitthan was working as a labourer at Agra and used to live with the deceased for last about 13-14 years, though he was himself resident of village Unchagaon, Police Station Shamshabad, District Agra. The deceased Jaite Ram had remarried with one Angoori, Sundan (deceased accused-appellant) was the son of Angoori. He had come with Angoori and was brought up by the deceased Jaite Ram as his son. About a year before the incident, Jaite Ram had even performed the marriage of Sundan, Sundan was living in another house belonging to the deceased Jaite Ram which was adjacent to the house of the deceased in which he was living with his wife at the time of incident. Sundan frequently used to quarrel with Jaite Ram who was a well to do person. In between the fateful night, Jaite Ram was sleeping in his house. Mitthan was also sleeping there. There were two rooms in the house of Jaite Ram. Mitthan and Jaite Ram were sleeping in the outer room and the deceased Govindi was sleeping in the inner room. At about 2. 00 -2. In between the fateful night, Jaite Ram was sleeping in his house. Mitthan was also sleeping there. There were two rooms in the house of Jaite Ram. Mitthan and Jaite Ram were sleeping in the outer room and the deceased Govindi was sleeping in the inner room. At about 2. 00 -2. 30 Oclock in the night, Govindi got up to urinate and went out of the room for the purpose. She came back. A Dibiya (earthen or tinned small lamp of kerosene) was glowing in the room of Jaite Ram. After returning in the room of Jaite Ram, Govindi fell down on the cot of Mitthan PW 11. Mitthan got up and saw that there were 3-4 bandits or miscreants inside the room. Two of them had torches which they flashed. Sundan, Dhapa alias Dhup Singh and Pratap were identified by him in the room. These three roped Mitthan with his cot. Jaite Ram and Govindi were then murdered by them. It was also slated in the F. I. R. that Sundan, Pratap and Dhapa alias Dhup Singh held out at the time of the incident that the deceased were not prepared to part away with their property and were unnecessarily harassing them (accused ). As related in the F. I. R. , these accused appellants were responsible for committing murder of two deceased by strangulating them. There were said to be three other unknown participants of this crime. 3. On the lodging of the F. I. R. , a case was registered under Sections 147/149/302 I. P. C. against three known accused appellants and three unknown persons. The investigation followed as usual at the hands of G. M. Hashmi PW 5 which was concluded by S. S. I. Mulayam Singh PW 10. 4. To come to the point, skipping unnecessary details, Dr. S. C. Sharma PW 12 conducted autopsy on the persons of the two deceased Jaite Ram and Govindi on 15-2-1980 at 12. 00 and 12. 30 noon. The outcome was as under: 5. Jaite Ram was aged about 75 years and he died 1-1/2 days back. The following ante-mortem injuries were found on his person: (1) Multiple abrasions 3"x 1" on right side neck. (2) Abrasions 1" x 1" on left side neck. (3) Fracture sternum in multiple pieces. (4) Fracture ribs 2-9 on right side. (5) Fracture ribs 2-9 on left side chest. The following ante-mortem injuries were found on his person: (1) Multiple abrasions 3"x 1" on right side neck. (2) Abrasions 1" x 1" on left side neck. (3) Fracture sternum in multiple pieces. (4) Fracture ribs 2-9 on right side. (5) Fracture ribs 2-9 on left side chest. Internal examination revealed the following: Fracture sternum and fracture both side ribs as noted above; left and right side pleura lacerated 2" x 2" mid-part; larynx was congested; left lung was lacerated at several places; pericardium contained blood left atrium of heart was lacerated and left side pleura cavity contained half ounce of blood. The cause of death was shock and haemorrhage as a result of above injuries. 6. Govindi was aged about 75 years and she too died 1-1/2 days before The following ante-mortem injuries were found on her person: (1) Abraded contusion 4" x 3-1/2" at right side neck. (2) Multiple abraded contusions on left side neck. (3) Fracture sternum at the junction of manubrium sternum. (4) Fracture ribs left side 2-9 ribs. (5) Fracture ribs 2-9 left side. (6) Fracture 2nd cervical vertebra. (7) Fracture hyoid bone cornu both sides, lips and nails were blue. Internal examination revealed the following 2nd cervical vertebra fractured; spinal cord lacerated under fractured vertebra; both side ribs were fractured; larynx was congested; both the lungs were congested; right side heart was full of blood but left side heart was empty. The cause of death was shock and hemorrhage as a result of ante-mortem injuries. 7. The accused-appellants denied their complicity in the occurrence in question. The deceased appellant Sundan pleaded that Mitthan PW 11 was the real murderer of the deceased. According to him, the deceased Jaite Ram and Govindi wanted to adopt him. They collected a number of persons of their locality about 15 days before the occurrence for taking him in adoption and they duly adopted him on 13-2-1980. The two deceased asked him that on 16th of that month the writing of the adoption would be executed. They asked him to go to his in-laws house at Bharatpur to call them. He had gone to Bharatpur on 13-1-1980 and came back on 14-2-1980 at about 9. 00 and, 9. 30 a. m. and was falsely booked in this case in connivance of Mitthan PW 11. 8. Pratap stated that Jaite Ram and Mitthan used to quarrel over money. He had gone to Bharatpur on 13-1-1980 and came back on 14-2-1980 at about 9. 00 and, 9. 30 a. m. and was falsely booked in this case in connivance of Mitthan PW 11. 8. Pratap stated that Jaite Ram and Mitthan used to quarrel over money. He pleaded his innocence. 9. Dhapa alias Dhup Singh pleaded that Sub-Inspector of Police had snatched away his bread and twenty five rupees and had falsely booked him in this case. 10. The prosecution, in all, examined 13 witnesses in support of its case including the so-called eye- witness Mitthan PW 11. The accused-persons did not adduce any oral evidence in their defence. The case and evidence of the prosecution found favour with the learned trial Judge who recorded the judgement impugned in this appeal. 11. The appellants Pratap and Dhapa alias Dhup Singh were reported to be not available. Then proceedings under Sections 82/83 Cr. P. C. were initiated against them but with no fruitful result. We, therefore, appointed Smt. Rajlaxmi Sinha as amicus curiae to argue out the appeal on their behalf. After preparation, she has argued out the appeal on behalf of the two accused-appellants. In opposition of the appeal, we have heard Sri Sudhir Kumar Agrawal, learned A. G. A. The record has been summoned before us which we have carefully perused. 12. The argument of amicus curiae is that the testimony of the star witness of the prosecution, namely, Mitthan PW 11 was inconsistent and self-contradictory which could not form the basis for conviction of the accused-appellants in the absence of any other corroborative evidence. According to her the impugned judgment had been passed on conjectural inferences. On the other hand, learned A. G. A. has opposed the appeal on the premise that the deceased accused-appellant Sundan with his associates had a strong motive to commit this crime in the greed of property of the two deceased and that the testimony of Mitthan PW 11 was perfectly believable who was an uninterested person and a natural witness of the incident being present in the room where the two unfortunate deceased were done to death. 13. We have bestowed our thoughtful consideration to the appeal at hand having regard to the evidence on record. 13. We have bestowed our thoughtful consideration to the appeal at hand having regard to the evidence on record. Dealing with the salient features of the evidence, it is to be pointed out that the scribe of the F. I. R. namely, Narain Singh PW 1 stated that the two deceased were murdered in the intervening night of 13/14- 2-1980. He was the resident of the same locality in which the deceased resided. According to him, at about 3. 00-3. 30 a. m. Sobran Singh came to his house. This witness and his mother Gajro Devi went to the house of the deceased. There he saw that the house was locked and Mitthan PW 11 was crying from inside the house that he be taken out. He stated that he wrote the report Ext. Ka-1 about the occurrence at the instance of Mitthan PW 11 at about 8. 00 a. m. on 14-2-1980 at Police Station Kotwali, Agra, which Mitthan signed after hearing the contents. The witness was cross- examined by the State Counsel and he denied the suggestion put to him from the side of the State that the report Ext. Ka-1 was actually written by him at 4. 00 a. m. on 14-2-1980. As per the record, the report was lodged on 14-2-1980 at 4. 00 a. m. We also note from the testimony of this witness that he had gone to Kotwali Agra on hearing the cries of Mitthan Singh emanating from the house for taking him out and he could not say as to who opened the door and took him out. It is also there in his testimony that at about 8. 00 a. m. , the police brought Mitthan to Kotwali Agra where he wrote down the F. I. R. Obviously, it comes to the surface that the F. I. R. was ante-timed and came in existence after the police had stepped in by taking Mitthan to Police Station at about 8. 00 a. m. on 14-2-1980. This being so, it throws serious doubt on prosecution case as put forth when considered in conjunction with certain other circumstances to which we shall allude in the succeeding discussion. 14. Babu Lal PW 2 was a close neighbour of the two deceased and he stated that after hearing noise of the murder of the two deceased, he went to their house. He found the house locked. 14. Babu Lal PW 2 was a close neighbour of the two deceased and he stated that after hearing noise of the murder of the two deceased, he went to their house. He found the house locked. He also stated that Mitthan PW 11 was inside the house. He, however, did not support the prosecution that three months before the occurrence, Sundan had quarrelled with the deceased Jaite Ram. He was also cross-examined by the prosecution. Brakh Bhan PW 3 (witness of the inquest report) stated about the relations of the accused Sundan with Jaite Ram to be cordial. He was also cross- examined by the State Counsel, but he disowned his alleged statement under Section 16 Cr. P. C. that there was dispute between accused Sundan and Jaite Ram and Sundan had even assaulted deceased Jaite Ram and Govindi. This witness also resided in the same locality. Sobran Singh PW 4 was the Sarhu of Sundan. According to him, Sundan and the deceased had good and affectionate relations. He was also cross-examined by the State Counsel. Bharat Singh PW 7 stated that the deceased Jaite Ram had performed the marriage of Sundan and the relations between the two were cordial. It has come down from the statement of Bharat Singh PW 7 that the deceased Jaite Ram owned several houses and he also carried business of pawning ornaments, keeping 5-10 thousand rupees with him. Prem Chandra PW 8 also stated that there was no quarrel between Jaite Ram and the accused Sundan. Gajro Devi PW 9 was the sister-in-law of the deceased persons and stated that as Jaite Rams wife Govindi had not given birth to any child, he had remarried with the mother of Sundan whose name was Angoori, Sundan had come with Angoori. Jaite Ram had brought up Sundan as a son and he had married him (Sundan ). Hearing about the murder of the two deceased, she went over to their house and found Mitthan to be present there. She was also cross-examined by the State Counsel. 15. Obviously, the statements of the above witnesses do not help the prosecution to advance its case against the accused-persons even a bit. There is nothing to infer that the relations between Sundan and deceased were strained or that he could have any motive to murder the deceased to grab their wealth or property. 15. Obviously, the statements of the above witnesses do not help the prosecution to advance its case against the accused-persons even a bit. There is nothing to infer that the relations between Sundan and deceased were strained or that he could have any motive to murder the deceased to grab their wealth or property. In fact, he was not going to gain anything by murdering them. 16. Another disturbing feature of the case is that the evidence of CW1 constable Mahendra Singh and CW 2 constable Prakash Chandra Pathak that the lock of the room was broken open by them and Mitthan was taken out is attended with doubtful circumstances. They have stated that they were on patrol duty and heard the noise coming out from the house of the deceased. Thereupon, they went to the house of the deceased and saw a number of persons present there. They then broke open the lock of the house of the deceased and found the complainant Mitthan tied with a rope to the cot inside the house. They brought him outside at about 3. 00-3. 30 a. m. After allegedly so taking out Mitthan outside, they did nothing and kept waiting for Inspector Hashmi to arrive. They were posted at police outpost Paya of Police Station Kotwali which was at a distance of one furlong from Dhuliagang crossing. Dhuliagang crossing was 200-300 yards away from the spot. Now, such conduct of these police constables in doing nothing after allegedly taking out Mitthan breaking open the lock was quite unusual. At least one of them could have gone to the police outpost or the Police Station to report the happening. It is not free from doubt that these two constables had taken out Mitthan from inside the house after breaking open the lock. 17. Another suspicious circumstance is that no abrasions etc. had been found on the person of Mitthan which would have naturally been there, had he been tied up with his cot by the miscreants. 18. Another aspect of the matter is that Investigating Officer did not find any evidence of ransacking the house. In case greed for wealth was the motive behind the commission of this crime by Sundan with the aid of his associates, some of the valuables or articles would have been taken away. Nothing of the kind was done. 19. 18. Another aspect of the matter is that Investigating Officer did not find any evidence of ransacking the house. In case greed for wealth was the motive behind the commission of this crime by Sundan with the aid of his associates, some of the valuables or articles would have been taken away. Nothing of the kind was done. 19. It also does not stand to reason that Sundan who was very well-known to Mitthan, would have gone to commit this crime with open face without taking any precaution to conceal his identity. Ordinarily a known culprit, choosing night as the time of the incident, would take precaution that no evidence is left. Though there is no evidence in support of his being the author of the crime, conversely, if he had determined to commit this crime with open face, he would then not have left Mitthan also unharmed, particularly when he was aided by his associates. He would not have contented by simply tying down Mitthan to his cot with rope, in support of which also we do not find any medical evidence in the form of abrasions etc. on the person of Mitthan. 20. The star witness of the prosecution, namely, Mitthan PW11 we should say, is a self-condemned person. He says one thing in one breath and contradicts himself in another. His statement was so fluctuating that the prosecution too cross-examined him. He did not oblige the prosecution on the point that he saw the accused- persons strangulating the deceased. However, he stated that 3-4 bandits had entered the room of the deceased on the fateful night of the occurrence and he had identified Sundan, Dhapa alias Dhup Singh and Pratap who had tied him with rope to his cot. According to him, at about 2. 00-2. 30 O clock in the night Govindi got up to urinate. She went out of the house for the purpose and came back. A dibiya of kerosene was glowing. When she returned in the room, she fell on her cot. Then he got up and saw 3-4 bandits inside his room. Two of these bandits, had torches which they were flashing. He as said earlier, allegedly identified Sundan, Dhapa and Pratap. It is also there in his statement that he did not know as to what happened after he was tied down to his cot. Then he got up and saw 3-4 bandits inside his room. Two of these bandits, had torches which they were flashing. He as said earlier, allegedly identified Sundan, Dhapa and Pratap. It is also there in his statement that he did not know as to what happened after he was tied down to his cot. He also stated that he did not know as to who killed Jaite Ram and Govindi and what happened. At one place, he stated that there were 5-6 bandits who could be 4-5 also. In an answer to a specific question; "kaise Katal Kiya, Tumne Kuchh Karte Dekha". His answer was, "hamne Kuchh Karte Nahi Dekha". A thorough scrutiny of the statement of this solitary so-called eye-witness is replete of contradictions and inconsistencies. His statement is not quite consistent with the averments of the FIR also. The trial Judge lightly ignored this sad state of affairs by observing that Mitthan PW 11 also appeared to have been prevailed upon by the accused-persons. The truth of the matter is that the entire prosecution story, tried to be unfolded through the evidence adduced in Court, was shrouded in dubious circumstances and lost in the womb of obscurity. True two unfortunate old persons were murdered in a merciless manner and it is a mystery as to who committed the crime. But conviction could not be recorded by giving free flight to imagination or on unfounded inferences. The Court cannot and would not convict Peter for Paul. The Court of law is to be guided by the legal evidence adduced before it. The shocking nature of the crime cannot and should not induce an instinctive reaction against dispassionate examination of the evidence adduced in the case. 21. In view of the apparent shortcomings surfacing on the scrutiny of the evidence adduced in Court as discussed above, we are clearly of the view that the impugned judgment of conviction is unsustainable. We are inclined to allow this appeal. 22. The appeal is hereby allowed. The impugned judgment of conviction and sentences passed against accused-appellants Pratap and Dhapa alias Dhup Singh is set aside and they are acquitted. They are already on bail. The appeal has already abated in respect of accused-appellant Sundan, who died during the pendency of the appeal. 23. We are inclined to allow this appeal. 22. The appeal is hereby allowed. The impugned judgment of conviction and sentences passed against accused-appellants Pratap and Dhapa alias Dhup Singh is set aside and they are acquitted. They are already on bail. The appeal has already abated in respect of accused-appellant Sundan, who died during the pendency of the appeal. 23. Smt. Rajlaxmi Sinha, amicus curiae, who has argued out the appeal on behalf of the accused- appellants, shall get Rs. 1,000 (Rupees one thousand only) as her fee. 24. Judgment be certified to the lower Court immediately for necessary entries in the relevant register and reporting compliance to this Court within two months from the date of receipt. Appeal allowed. .