JUDGMENT 1. - This appeal is by Gurdeep Singh S/o Mukhtiyar Singh, who has been convicted for the offence u/s. 302 IPC by learned Additional Sessions Judge, Srikaranpur vide his judgment dated 5.11.1999. 2. As per the prosecution case, deceased-Dalbara Singh was brother of appellant's father and was having land at Chuck 2-EEA whereas appellant- Gurdeep Singh and his brothers viz. Malkeet Singh, Hardeep Singh and Mahendra Singh had a joint land at Phoolkheda at Haryana State. The deceased was residing at Phoolkheda whereas the appellant and his brothers were residing at Chuck 2-EEA. The deceased was desirous of getting the land situated at Phoolkheda where he was residing in exchange of his land situated at Chuck 2-EEA. The other three brothers of the appellant were agreeable to this exchange, while the appellant was not and therefore he was nurturing a grudge against Dalbara Singh, Gurdeep Singh was keen on getting his share of land that was situated in Phoolkheda which was in possession of the deceased. While Dalbara Singh was staying at Malkeet Singh's residence, at about 11.45 p.m. on 24.5.1997, Gurdeep Singh assaulted Dalbara Singh with lathi while he was sleeping outside the house of Malkeet Singh which resulted in his death. 3. According to Purcha Bayan Ex.P/1 of Malkeet Singh on which, FIR Ex.P/2 was registered the complainant's uncle Dalbara Singh S/o Gulab Singh had come to Chak 2-EEA with Balkaran Singh, who was son of complainant's father's sister on 23.5.1997 and were staying with him. On 24.5.1997 his colleague from the co-operative Department viz. his immediate officer SI Saheb and one Mustaq All Audit Inspector had also come to his house and were staying overnight with him. After having taken their dinner, the deceased was sleeping at the Choki in front of his house adjoining to sitting room and by his side, Mustaq Ali and the other officer were also sleeping at a short distance. According to FIR, while deceased and the other officer had slept, Mustaq Ali was awake and that he with his cousin Balkaran Singh was inside house and they were also awake and talking. At about 11.45 p.m., he heard the sound of striking of Lathi. According to FIR, while deceased and the other officer had slept, Mustaq Ali was awake and that he with his cousin Balkaran Singh was inside house and they were also awake and talking. At about 11.45 p.m., he heard the sound of striking of Lathi. On hearing this, he and his cousin ran towards the gate of the house and on reaching at the gate of the house, he saw that Gurdeep Singh was delivering blow after blow on the head of Dalbara Singh. Seeing them the assailant ran away. When they attended to his uncle, his head had been crushed and he was soaked with blood but he was alive. After he was given water, he died shortly. This Purcha Bayan is alleged to have been recorded at about 1.30 a.m. on 25.5.1997 i.e. within about one hour and 45 minutes of the alleged incident. The FIR does not disclose the name of the officer of the complainant who was alleged to be accompanying Mustaq All, and staying at the residence of informant. 4. On receiving this information, at about 1.30 a.m. the police reached the spot immediately thereafter at about 2.00 a.m.; but no investigation is alleged to have been conducted until next morning. After conducting usual investigation Gurdeep Singh was arrested about 3.30 p.m. on 25.5.1997. Thereafter, challan was submitted by police and the accused was committed to Sessions for trial by the committing Magistrate. The prosecution examined as many as 10 witnesses of which PW-1, Malkeet Singh, PW-2 Mustaq Ali and PW-3 Balkaran Singh have been examined as eye-witnesses. PW-4 Buta Singh has been primarily examined as an attesting witness of the Arrest Memo of Gurdeep Singh (PW-6) and the recovery memo of Lathi (Ex.P/7). He is also the attesting witness of recovery of blood stained cloths of Gurdeep Singh vide Ex.P/8. Ex.P/9 which is a site inspection note of the recovery of Lathi also bears his signatures as attesting witness. He states that he too was staying in the house of Malkeet Singh with the informant at the time of incident but he was sleeping in drunken position and he was awakened only at 4.30 a.m. by Malkeet Singh ajad Malkeet Singh's wife. PW4, Buta Singh is maternal uncle of Malkeet Singh ,'s wife. He states that he too was staying in the house of Malkeet Singh with the informant at the time of incident but he was sleeping in drunken position and he was awakened only at 4.30 a.m. by Malkeet Singh ajad Malkeet Singh's wife. PW4, Buta Singh is maternal uncle of Malkeet Singh ,'s wife. PW-5 Ram Chandra, is the photographer who has taken the photographs of the site and proves the Ex.P/10, P/11, P/12 and Ex.P/10-A, 11-A, and 12-A respectively the negatives and positives of the photographs taken by him at the site. PW-6, Arun Kumar Pareek is a member of RJS, who was at the relevant time, posted as ACJM, Srikaranpur and recorded the statements of Malkeet Singh, Mustaq Ali and Balkaran Singh u/s. 164 Cr.P.C. which statements are Ex.D/2 of Malkeet Singh, and Ex.P/14 is of Balkaran. PW-7 Vichitra Singh is the Malkhana incharge of Police Station Bhoomarwali at the relevant time and PW-8 Banjar Singh is the person who has taken the 10 packets of the different articles to Forensic Science Laboratory, Jaipur. PW-9 is the Doctor who proved the post-mortem report Ex.P/20 and states that the type of injuries received by deceased could be caused by a weapon like Lathi. PW-10, Sarvan Ali is the investigating Officer. 5. Relying on statements of Malkeet Singh, Balkaran Singh and Mustaq Ali and considering the statement of PW-9, Dr. Darshan Singh that injuries found on the deceased which are ante-mortem and were sufficient in ordinary course to cause death of the deceased and could be caused by lathi like weapon and that the articles recovered at the instance of accused were found to be blood stained, the learned Trial Court convicted the accused as aforesaid and punished him with life imprisonment and a fine of Rs. 10,000/- and in default, he was to further undergo one years S.I. 6. Learned counsel for the appellant has urged that number of attending circumstances render it highly improbable that the incident could have been seen by any of the alleged eye-witnesses. The presence of Mustaq Ali, the alleged eye-witness and Balkaran is highly suspicious and the recovery of incriminating articles cannot be stated to have been proved at the instance of accused. Learned counsel for the appellant has urged that number of attending circumstances render it highly improbable that the incident could have been seen by any of the alleged eye-witnesses. The presence of Mustaq Ali, the alleged eye-witness and Balkaran is highly suspicious and the recovery of incriminating articles cannot be stated to have been proved at the instance of accused. It was also vehemently urged by the learned counsel for the appellant that while genesis of motive has been attributed to appellant-Gurdeep Singh to murder his uncle is not at all established, on the contrary, the motive, if any, to do away with Dalbara Singh which is proved on record points to informant Malkeet Singh. It was pointed out by Mr. Kharalia, learned counsel for the appellant that FIR appears to have been recorded much later than the time which it bears after deliberation and consultation advisedly whom to make accused. The theory of eye-witnesses has been set up when there was none. It was case of blind murder and having not found clue, the accused-appellant has been named in the FIR by ante-timing the FIR. 7. We have heard the learned counsel for the appellant and learned Public Prosecutor and perused the record. 8. The following facts and circumstances emerge from the record:- (i) According to the prosecution witnesses, the police has reached at the site before the time stated, while recording the Purcha Bayan. Notwithstanding having reached on the spot at 2.00 p.m., no statement of the available persons, who claimed to be present at the spot and had seen the incident was recorded immediately but all the statements have been recorded much later in the late morning. Had the alleged eye-witnesses were present on the site and have seen the occurrence, there was no reason why the statements would not have been recorded soon after the police reached at the place. (ii) The presence of Buta Singh has not been stated in the First Information Report at all. While Mustaq All has been named in FIR, the other person who was accompanying him has not at all been named in the Purcha Bayan nor was he examined as witness though named in the list of witness attached with challan. Name of such other person was mentioned as Mr. While Mustaq All has been named in FIR, the other person who was accompanying him has not at all been named in the Purcha Bayan nor was he examined as witness though named in the list of witness attached with challan. Name of such other person was mentioned as Mr. Ramphal Meena who is said to be an immediate officer of complainant and had stayed at his house at night as per his version. Thus, he was a known person, yet his name does not find place in the FIR. He was also given up as witness. (iii) No evidence was led to prove the programme of Shri Ramphal Meena and Mustaq Ali for visiting the office to be visited and any plausible reason for the two persons viz. Ramphal. and Mustaq All at the house of Malkeet Singh-complainant. As per prosecution evidence the tour programme is circulated in advance and a record of it is also kept. It was also stated by witness PW-2, Mustaq Ali that such record is kept, yet the same has not been produced to lend corroboration to support the fact that audit party companying Ramphal Meena and Mustaq Ali would be visiting the Branch of Society where Malkeet Singh was working. (iv) No independent witnesses has been examined. The two brothers of Malkeet Singh, who allegedly came soon after the incident, any of the female member of the household of Malkeet Singh, who were present in the house at the time of occurrence, have not been examined. (v) The Police Station is hardly 1 and half to 2 km. away from the site of occurrence. However for no explicable reason, Malkeet Singh has taken 11 Kms. long route to reach for reporting the incident. Presumably, to make up the time and explain that when the police has reached within 7-8 minutes of the lodging of the report why it has taken so long for Malkeet Singh to reach the Police Station when he has immediately left for making report to police soon after the occurrence. (vi) Buta Singh and Ramphal Meena, both are alleged to be present at the time of occurrence. While Buta Singh has stated that neither anybody woke him up, nor he himself could wake up even after the incident has occurred. (vi) Buta Singh and Ramphal Meena, both are alleged to be present at the time of occurrence. While Buta Singh has stated that neither anybody woke him up, nor he himself could wake up even after the incident has occurred. The police had come at 2.00 p.m. and still no body disturbed him nor it was considered appropriate by the Police, which has shown promptness to reach the site 7-8 minutes has shown no interest to examine any of the witnesses or person available at the site to collect the first-hand information of the incident immediately. Had the accused been known and the persons purporting to be the eye-witnesses have witnessed the occurrence and the police too had been on scene of occurrence at 2.00 a.m. why it took more than eight hours for police to record the statements and then another 7-8 hours to arrest the accused, when the accused was not out of the town. In fact, as per the statement of PW-2 Mustaq Ali, he had run towards his house immediately after belabouring Dalbara Singh. None of the documents prepared at site given any indication of presence of Mustaq All or Balkaran on the site. Though names of these persons have been shown in Purcha Bayan but no document prepared by Investigating Officer bears signatures of either Mustaq Ali or Balkaran Singh to vouch safe their presence on the site when the police arrived at the scene. This casts a serious doubt on the presence of Mustaq Ali and Balkaran on the scene of occurrence at the time of incident. Of course Malkeet Singh was in the same house but it is highly doubtful that he could have seen the occurrence as narrated by him. For the same reason, even if presence of Balkaran Singh with Malkeet Singh is believed, he could not have seen the happening at 11.45 p.m. from the place market `X' in the site plan at which place Malkeet Singh and Balkaran Singh had reached after hearing the sound of lathi blow and seen the incident. (vii) It was stated by Malkeet Singh and Mustaq Ali that Ramphal Meena was sleeping only a few feet away from the place where deceased-Dalbara Singh was sleeping. Admittedly, Dalbara Singh and Ramphal Meena both had slept at the time incident had occurred. (vii) It was stated by Malkeet Singh and Mustaq Ali that Ramphal Meena was sleeping only a few feet away from the place where deceased-Dalbara Singh was sleeping. Admittedly, Dalbara Singh and Ramphal Meena both had slept at the time incident had occurred. How the informant inside the house could know that Mustaq All was lying awake outside the house near the aforesaid two persons. It does not stand to reason that an officer Ramphal Meena who was sleeping side by side a few feet away from the deceased would not have woken up and taken notice of the incident even before Malkeet Singh was out of his house. He could have corroborated to lend support to claim of Mustaq Ali's presence on site. Notwithstanding naming him as prosecution witness he has not been produced. It does not give rise to reasonable doubt to draw an adverse inference against the prosecution, that had he been examined he would not have supported the case of prosecution and would not have supported the presence of himself and Mustaq Ali on the scene of occurrence when the offence was committed. (viii) If Mr. Meena's presence on the site becomes doubtful, Mustaq Ali's presence in the same manner on the site also becomes doubtful. (ix) The recoveries have not been proved. (x) The prosecution has miserably failed to prove the motive on behalf of Gurdeep Singh to have any grudge against the deceased. In this connection, it was pointed out that admittedly land situated in Phoolkheda where Dalbara Singh was residing was joint property of the appellant and his three brothers and he was not willing to part with that land. That can hardly be a ground for Gurdeep Singh to nurture any ill-will to kill Dalbara Sing. It has come on record that so far as Dalbara Singh was concerned, he has executed a sale deed transferring his land in Chak 2-EEA in favour of three brothers of accused viz. Malkeet Singh, Hardeep Singh and Mahendra Singh for a sum of Rs. 4,56,000/-. Said sale deed Ex.D/3 has been produced by the appellant which shows that it was not a transaction of exchange as alleged by the prosecution but was a case of outright sale for consideration and was only in favour of the three brothers, other than appellant-Gurdeep Singh. Malkeet Singh, Hardeep Singh and Mahendra Singh for a sum of Rs. 4,56,000/-. Said sale deed Ex.D/3 has been produced by the appellant which shows that it was not a transaction of exchange as alleged by the prosecution but was a case of outright sale for consideration and was only in favour of the three brothers, other than appellant-Gurdeep Singh. Therefore, accused-Gurdeep Singh could have no grudge against deceased on account purchase of this property by his three brothers, when he was either willing to purchase the property of Dalbara Singh nor to part with his share of the land at Phoolkheda and when has brothers have not acquired-the land in Chak 2-EEA by way of exchange, but by registered sale for consideration. There is no evidence except a bald statement by PW- 1 Malkeet Singh that an agreement to sell has also been written by them in favour of Dalbara Singh the deceased. Even if it be so it can give a cause of concern to Malkeet Singh and his two brothers who have joined him in sale transaction that because of non- participation of Gurdeep Singh, they are not able to carry out exchange of land which they had desired and they are made to acquire the land by paying consideration. The motive, if any, has its needle towards Malkeet Singh to falsely implicate Gurdeep Singh. (xi) Notwithstanding that a specific case has been set up by the prosecution that Dalbara Singh and Balkaran Singh had come to Chak 2-EEA to settle the dispute about land, there is nothing on record to suggest that either on 23.5.1997 or 24.5.1997 any such attempt was made to resolve such dispute with Gurdeep Singh or such talks have taken place between Dalbara Singh and Gurdeep Singh to cast any aspersion of discord on the part of Gurdeep Singh. Admittedly, as per the prosecution case, Gurdeep Singh was with Malkeet Singh and Dalbara Singh until 9.30-10.00 p.m. However, no witness has stated that any discussion about the alleged dispute took place between Dalbara Singh and Gurdeep Singh or amongst those present. On the contrary, suggestion was put that notwithstanding receipt of consideration has been mentioned in the sale-deed, some amount remained due to be paid to Dalbara Singh in respect of said sale of land and he has come to recover that amount from Malkeet Singh. On the contrary, suggestion was put that notwithstanding receipt of consideration has been mentioned in the sale-deed, some amount remained due to be paid to Dalbara Singh in respect of said sale of land and he has come to recover that amount from Malkeet Singh. Therefore obviously, no discussion about the proposed exchange of land took place with Gurdeep Singh or in his presence. Had the purposes of visit been to sort out differences about alleged proposed exchange with Dalbara Singh, it sounds strange that when Dalbara Singh was in the town since 23.5.1997, all concerned were together until about 10.00 p.m. in the evening of 24.5.1997, yet no talk has taken place about the alleged dispute until Dalbara Singh was done away with at the house of Malkeet Singh. No such incident which could harbour betterment between accused-Gurdeep Singh and deceased- Malkeet Singh has taken place during said period. It only goes to show that there was no motive 'whatsoever which could be attributed to accused- Gurdeep Singh in nurturing any inimical relation towards Dalbara Singh which could have prompted him to murder him. (xii) In fact, the evidence led by the prosecution about motive, if true, only shows needle of suspection towards informant Malkeet Singh. It is well established that accused has no desire to go for exchange. No such desire on the part of accused to acquire the land of Dalbara Singh at Chak 2-EEA has been shown to exist. It is also established that accused was not interested even to part with his land at Phoolkheda. It was the desire of three brothers of accused (Malkeet Singh, Hardeep and Mahendra Singh) to get the land of Chak 2-EEA from Dalbara Singh by offering their own land at Phoolkheda to the deceased. In other words, accused was satisfied with the existing state of affairs whereas his brothers including Malkeet Singh were desirous of getting the land at Chak 2-EEA without payment by way of exchange of their land at Phoolkheda. This may give cause of grievance to those who are interested in bargain to put the thorn in bush aside and to exert to render pressure by putting him to trouble or remove him from the arena. The possibility of motivated false irhplication of accused after due deliberation cannot be reasonably ruled out. This may give cause of grievance to those who are interested in bargain to put the thorn in bush aside and to exert to render pressure by putting him to trouble or remove him from the arena. The possibility of motivated false irhplication of accused after due deliberation cannot be reasonably ruled out. (xiii) The investigation clearly goes to show that at the night when the police came, they looked for trail-of culprit on the basis of some foot-prints. Had Malkeet Singh, Mustaq Ali and Balkaran Singh seen the occurrence, and has also seen the accused going towards a particular direction, there was no reason to find and pursue the trail marks because if the prosecution case is believed, the accused was well known and his house was also adjacent to house of Malkeet Singh informant. (xiv) The alleged recovery of blood stained articles also cannot be held against the accused. The recovery itself is not proved to be at the instance of accused. (xv) It is strange that on all the memos where attesting witness was required, the name of Buta Singh, Harnek Singh and Foja Singh appeared. Even from amongst said persons, the only independent attesting witness has not been produced and the prosecution has placed sole reliance on Buta Singh, who has been examined as PW-4. (xvi) Ex.P/6, arrest memo was prepared at about 3.15 p.m. on 24.5.1997, shows attesting witness to be Malkeet Singh namely the informant and his uncle in law Buta Singh. Ex.P/7, P/8 and Ex.P/9 are recovery memos and the site plan of the place of recovery are all alleged to have been made in the presence of Buta Singh and Mahendra Singh (other brother of Malkeet Singh). Said Mahendra Singh has also not been examined. (xvii) It also does not stand to reason that Malkeet Singh, Balkaran Singh and Mustaq Ali were required by the police to be examined u/s. 164 Cr.P.C. as if it was doubted by the prosecution that they may turn hostile. The only explanation is they were not eye- witnesses; and Balkaran and Malkeet and Mustaq, perhaps were not found present on the site when the incident took place and therefore, as such they were not likely to support the prosecution case with the passage of time. The only explanation is they were not eye- witnesses; and Balkaran and Malkeet and Mustaq, perhaps were not found present on the site when the incident took place and therefore, as such they were not likely to support the prosecution case with the passage of time. To blind them, to prosecution case the statements of these witnesses u/s. 164 Cr.P.C. were insisted otherwise there does not stand any reason for examining these witnesses u/s. 164. (xviii) As per the site inspection report, the dead body of Dalbara Singh was lying socked in blood: and the blood stains were found upto height of 6-7 feet on the wall towards his head and the alleged cloths recovered. at the instance of Gurdeep Singh were also blood stained. Mustaq Ali has stated that he was standing near the cot of deceased. Yet on Mustaq Ali's person or cloths, no blood stains were found at all. As per his version he was standing only 4 to 5 feet away and was watching the incident. (xix) It is strange that according to PW-1 Malkeet Singh and statement in FIR Mustaq Ali was awake at the time of incident, yet no cry or sound was made by him to raise help or no attempt to intervene was made by him, but two persons inside the house about 60 feet away from the place of occurrence had heard the sound of lathi blow and rushed to see what is happening. None of the two alleged eye-witnesses viz. Malkeet Singh PW-1 or Mustaq All PW-2 came out of the gate. They have alleged to have seen the accused giving blow from the gate of house. (xx) While the recovery of blood stained cloths of accused is sought to be proved, PW-1 Malkeet Singh at whose house incident has taken place, and is brother of accused, states categorically that the accused was wearing the same cloths at the time of arrest which he was wearing at the time of incident. The clothes at the time of arrest were not blood stained. If statement of Malkeet Singh is to be believed, there could not have been any reason to concoct the recovery of blood stain cloths and chadar at the instance of the accused from his house. This circumstance not only belies the recovery but also creates a doubt about involvement of Gurdeep Singh in the crime. If statement of Malkeet Singh is to be believed, there could not have been any reason to concoct the recovery of blood stain cloths and chadar at the instance of the accused from his house. This circumstance not only belies the recovery but also creates a doubt about involvement of Gurdeep Singh in the crime. (xxi) About recoveries, it was pointed out that the information about lathi is alleged to have been given by the accused at 4.55 p.m. The information about cloths has been given at 4.30 p.m. vide Ex.P/27 and P/28 respectively. The recovery of lathi is alleged to have been made at 5.30 p.m. and of blood stained cloth at 6.30 p.m. by separate recoveries. This also appear to be highly suspect. When both the recoveries were to be made from the same site and the information was already given to the Police much before the time of the recoveries, it does not appear real that two separate recoveries at separate time with a hitus of almost one hour would be made. (xxii) Discrepancy in the description of the cloths which the accused was alleged to be wearing at the time of incident and recoveries is also there. (xxiii) It has been brought to our notice that notwithstanding it being the case that the Purcha Bayan was recovered at Police Station and FIR was also recorded at Police Station, the FIR does not bear any serial No. The column of Serial No. is left blank. It is suggestive of the fact that the FIR was not recorded at Police Station but much later than the time it bears and Purcha Bayan has been given ante-time so as to convert a case of blind murder into a crime committed in presence of number of witnesses. (xxiv) It is also pertinent to notice that none of the documents prepared at site bears the signatures of any of the person named to be present on the spot on the site plan, and are alleged to be eye-witnesses. No time is entered when the site plan was prepared. (xxv) It is also very doubtful that a person on official visit to inspect office where Malkeet Singh was employed, will spend night at his residence when the office was found to be closed. Mustaq Ali and Ramphal both are alleged to be forming audit party. No time is entered when the site plan was prepared. (xxv) It is also very doubtful that a person on official visit to inspect office where Malkeet Singh was employed, will spend night at his residence when the office was found to be closed. Mustaq Ali and Ramphal both are alleged to be forming audit party. Malkeet Singh was not residing in the same village where the office of his employment is and was to be visited by the audit party. Malkeet Singh has stated that the two had come to his house to inspect the co-operative society where he is working. It sounds highly doubtful that instead of going to office of Samiti, they will visit the house of Malkeet Singh in night. According to Mustaq Ali, PW-2 he along with Ramphal Meena had gone to audit Market Society, Ridmalsar and from there they had gone to Jeewandesar to inspect the society where Malkeet Singh was the Manager. Malkeet Singh was not found in Jeewandesar. If that were so no explanation has been given how and in what circumstances, the audit party visited the house of Manager and became his guest at his house for overnight, which itself is not at Jeewandesar, perhaps only to become witness of the murder. Coupled with this unusual act on the part of the audit-part, non-examination of Ramphal Meena as an eye-witness and no mark of their presence appearing on site until late in the morning notwithstanding the police being at site on the night at 2.00 p.m. soon after the incident casts a serious doubt about Mustaq Ali's presence at the scene of occurrence. (xxvi) It is to be noticed that the audit party did not find Malkeet Singh at place of his working where they were supposed to discharge their official business. This rules out any extension of invitation by Malkeet Singh to visit his house and accept his hospitality. Why on their own the audit party will go to another village to have the hospitality to an extent that the officer Mr. Ramphal Meena gets dead drunk like a log, that nothing even a gruesome murder at barely 10 to 12 feet away from him or arrival of police will stir him and the other man will keep awake until the late hours to witness the murder from a very close quarter. Ramphal Meena gets dead drunk like a log, that nothing even a gruesome murder at barely 10 to 12 feet away from him or arrival of police will stir him and the other man will keep awake until the late hours to witness the murder from a very close quarter. He does not raise any hue and cry, nor he is even acceptable as an independent attesting witness to site plan prepared at site and is not examined until late morning sound quite fairy tale like to be real. If at all it only casts a serious doubt about an inextricable close proximatity between Mustaq Ali and Malkeet Singh to be readily available to further latter's cause. This suspicion is further strengthened with very unusual and abnormal conduct attributed to Ramphal meena and Buta Singh, the other two persons, who were alleged to be also present at the time murder took place. Murder is not a routine incident. Where such an incident has happened at barely 10 feet away from Ramphal, and police has also arrived, still he is alleged to be remaining fast asleep and nobody has even attempted to woke him up. So also Buta Singh, who is maternal uncle of wife of complainant was alleged to be sleeping inside and is very near relation of informant Malkeet Singh, does not stir at all. He says that he was woken up at about 4.30 a.m. It is not believable that while no attempt was made to woke him up when incident has happened, or when police has come at site, but at 4.30, for what exactly the reason, he will be made to wake up, when police was not to commence its investigation until late in the morning. This makes the whole story about presence of Ramphal Meena, Mustaq Ali or Buta Singh at he house of Malkeet Singh at the time of incident very doubtful. (xxvii) Statement of Malkeet Singh and Balkaran Singh both, as per their statements, were cheating in chowk after dinner while Dalbara Singh, Ramphal Meena and Mustaq Ali had gone out to sleep on Chowki. None has spoken about having heard any cry or call from Dalbara Singh who has been assaulted. It does not sound truthful, firstly when they say while sitting inside house that Dalbara Singh and Ramphal had slept, but Mustaq Ali was awake, it sounds incredible. None has spoken about having heard any cry or call from Dalbara Singh who has been assaulted. It does not sound truthful, firstly when they say while sitting inside house that Dalbara Singh and Ramphal had slept, but Mustaq Ali was awake, it sounds incredible. Assiduously, by this statement, they also excluded Ramphal Meena from the arena of an eye-witness. While sitting inside house 11.45 p.m. at night how one could say who was awake and who had slept outside house? Both these witnesses in identical terms identified the sound that came to their ears as sound of hitting by lathi. On the one hand, these witnesses say that they challenged Gurdeep Singh when they saw him hitting Dalbara Singh and on this .challenge, he ran away. Yet, Malkeet Singh says that he did not go by the direct and short route which is only at a distance of about 3 Km. but took long route of 11 Km. They were brave enough to challenge accused on site when he was armed and after he ran, the witness suddenly developed cold feet due to fear to take an unusually long route in dead of night and was sure that accused will not be on the other route. This statement also appears to have been made to give breathing time to explain the time gap in reaching the Police Station. (xxviii) If the prosecution case is believed, Mustaq Ali was barely 3 to 4 feet away from Dalbara Singh and within the reach of Gurdeep Singh, Mustaq Ali neither makes attempt to run, nor gives a cry nor the assailant, who is so ruthless towards the victim Dalbara Singh makes any attempt to hurt the eye-witness, sounds too unreal to be believed. (xxix) The statement of PW-1 Malkeet Singh and PW-3 Balkaran Singh tested in the light of site-plan, also casts a doubt whether within the time the incident has taken place, Malkeet Singh or Balkaran Singh could have witnessed the occurrence from the gate at that time of night. (xxx) Ex.P/3 is the Site Plan of the place where the occurrence has taken place and Ex.P/3-A is the Site Inspection Note. It is stated to be prepared on 25.5.1997. However, it does not bear any time at which it was prepared. The site plan does not bear the name of any of the alleged eye-witnesses as attesting witnesses. (xxx) Ex.P/3 is the Site Plan of the place where the occurrence has taken place and Ex.P/3-A is the Site Inspection Note. It is stated to be prepared on 25.5.1997. However, it does not bear any time at which it was prepared. The site plan does not bear the name of any of the alleged eye-witnesses as attesting witnesses. Likewise, the Panchnama of the dead body of Dalbara Singh Ex.P/4 is stated to have been prepared on 25.5.1997 and it also does not bear any time and also amongst the attesting witnesses, the names of any of the members of the house of Malkeet Singh or other alleged eye-witnesses viz., Balkaran Singh, Mustaq Ali, Ramphal and Buta Singh, who all were alleged to be present at the time the police reached there, does not find place in Ex.P/4. Ex.P/5, which is also alleged to be prepared on 25.5.1997 is the furd about the dead body of Dalbara Singh and it also does not bear the time nor it has any insignia of presence of Balkaran Singh, Mustaq Ali, Buta Singh and Ramphal Meena at the scene of the occurrence. 9. Other documents prepared on 25.5.1997 are Ex.P/6, Ex.P/7, Ex.P/8 and Ex.P/9. Ex.P/6 is the document of arrest of Gurdeep Singh and Ex.P/7 is the ford of recovery of Lathi at the instance of Gurdeep Singh from his house. Ex.P/8 is the Recovery Memo of blood stained articles at the instance of Gurdeep Singh. These documents records the time of their writing, which have been attested by Malkeet Singh and Buta Singh, Mahendra Singh and Buta Singh respectively. Mahendra Singh is the real brother of Malkeet Singh. Said Mahendra Singh has not been examined. It may be noticed that Buta Singh was alleged to be present at the scene of the occurrence at the time of occurrence but his presence is for the first time recorded at 3.15 p.m. the next date. 10. In the totality of all the circumstances, we are of the opinion that testimony of alleged eye-witnesses viz., Malkeet Singh, PW-1, Mustaq Ali, PW-2 and Balkaran Singh, PW-3 sounds highly doubtful. Recoveries of blood-stained cloths of accused and weapon of offence at the instance of accused has also not been proved. In such circumstances, the prosecution has failed to prove the commission of offence by appellant beyond reasonable doubt. 11. Consequently, the appeal is allowed. Recoveries of blood-stained cloths of accused and weapon of offence at the instance of accused has also not been proved. In such circumstances, the prosecution has failed to prove the commission of offence by appellant beyond reasonable doubt. 11. Consequently, the appeal is allowed. Impugned judgment and order dated 5.11.1999 is set aside and the appellant is acquitted of charges u/s. 302 IPC and he be released forthwith, if not required in any other case.Appeal allowed. *******