JUDGMENT 1. - This D.B. Criminal appeal has been filed by accused-appellants, namely, Khanna Silo Rameshwar, Ladu S/o Ratna and Hemraj alias Hema s/o Sawai Ram against the judgment passed by the learned Addl. Sessions Judge (Fast Track), Bhilwara in Sessions Case No. 10/2001 State v. Khanna and others whereby the accused appellants have been convicted and 5 sentenced under Section 302/34 IPC for life imprisonment and a fine of Rs.1,000/- and in default thereof to further undergo three months R.I., under Section 323/34 IPC for one year's R.I., and under Section 342/34 three months R.I. The substantive sentences were ordered to run concurrently. 2. Briefly stated, the facts of the present case are that PW5 Smt. Radha w/o Manoharlal (PW6) lodged a written report Exhibit P/5 in the Police Station, Kotwali, Pratap Nagar, Bhilwara on 6.10.1999 at about 4 AM stating inter alia therein that accused viz. Khanna, Ladu. and Prema came at the house of one Smt. Badli her niece and took with them Sikandar (since died, hereinafter referred to as 'the deceased') on a false allegation of theft. P10 Sanjay came at the well of one Shri Kanji and informed her in the evening at about 6 PM that accused were beating Sikander at the house of accused Khanna. On hearing this, she alongwith her husband PW6 Manohar immediately rushed to the house of Khanna and saw that accused Ladu, Khanna, Hema, Prema. Ladu, Radheyshyam, Rameshwar, Smt. Vishnu w/o Khanna, Smt. Roshni w/o Sawai Ram, Sayari w/o Kalu, Rekha w/o Ladu. Teeka w/o Radheyshyam were beating his son the deceased with the cycle chain, lathis, iron pipe and wooden sticks. It is further averred that when she and her husband tried to save their son, accused tied them respectively with a stone and a mangrove three (babool) and they were also given beatings by the accused persons. It is further stated that the accused tied both legs of the deceased with a rope and was overturned i.e. his head was kept towards the earth side and legs upwards in the opposite direction. The accused also dragged the deceased subsequently and inserted red chillies in his anus Sikandar died on account of merciless beatings however both of them managed to get themselves released by untying themselves. The accused also dragged the deceased subsequently and inserted red chillies in his anus Sikandar died on account of merciless beatings however both of them managed to get themselves released by untying themselves. It is further averred that the deceased was married to the daughter of the brother of accused Rameshwarlal three years before the incident and on account of not sending his wife they were in inimical terms and for that reason on a false allegation of theft her son was taken by the accused persons, beaten and done to death. 3. On the above report Exhibit Pit Criminal Case No. 438/1999 under Sections 147, 148, 342, 323, 302/149 of the ICP was registered and a regular FIR exhibit P/6 was chalked out and investigation commenced. 4. During the course of investigation, PW22 Satyanarayan reached at 4o the spot and prepared Panchayatnama of the dead body Exhibit P/7. The Parches were of the opinion that the deceased died due to head and other injuries sustained by him. Site was inspected and Site Plan (Exhibit P/1) and Inspection Note (Exhibit P/2) were prepared in presence of Banshi, Manohar and Ratana. 5. On 6.10.1999, postmortem of the dead body was got conducted by PW27 Dr. Yashpai Singh. The postmortem report is Exhibit P/39. The cause of death was stated to be shock due to multiple injuries over neck and chest region. PW11 Rajendra Lodha medically examined PW6 Manohar, PW10 Sanjay, and PW5 Smt. Radha w/o Manohar on police requisition. Their injury reports are respectively P/16 to P118. Tie injuries found on their person were simple in nature. PW12 Dr. Avdhesh Kumar medically examined on Police requisition Smt. Roshni on 9.10.1999, and found one confusion for which he prepared Exhibit P/19, the injury report. Accused Khanna, accused Ladhu and accused Hemraj were arrested through Memo Exhibit P/31, Exhibit P/34 and Exhibit P/33 respectively. 6. Accused Khanna, in his disclosure statement recorded in Exhibit P/35 on 8.10.1999 stated that he was willing to get recovered the cycle chain by which the deceased was beaten. The chain was kept in his house and was got recovered as per the information. The site-plan of the place of recovery Exhibit P/11 was prepared. 7. Accused Ladu in his disclosure statement on 15.10.1999 stated that he was willing to get recovered a lathi containing blood spots. The chain was kept in his house and was got recovered as per the information. The site-plan of the place of recovery Exhibit P/11 was prepared. 7. Accused Ladu in his disclosure statement on 15.10.1999 stated that he was willing to get recovered a lathi containing blood spots. As per his disclosure statement, the lathi was recovered through Memo Exhibit P/22 and site plan of the place of recovery was prepared, which is Exhibit P/28. Accused Hemraj got recovered, as per his disclosure statement, a belt through recovery memo Exhibit P/14. The site plan prepared of the place of recovery is Exhibit P/15. The control soil and the blood smeared soil was lifted from the spot and was seized and sealed through Exhibit P/2. 8. PW13 Nand Singh, the police Constable, was examined in relation to a wireless message received regarding the incident, he reached at the spot and found some ladies sitting there. The body was taken to the hospital where the accused was declare dead. The seized articles were deposited in the Malkhana and PW14 Riyaz Khan made entries in the Malkhana register of the articles deposited in the Malkhana in the sealed condition and 35 subsequently sent the same with Constable Man Singh for chemical examination in the FSL. PW15 Man Singh, Constable, S.P Office has been examined to prove that he took 8 sealed packets after getting a forwarding letter issued by the S.P. Office Exhibit P/22 and thereafter for examination the articles were deposited by him on 7.12 1999 in the FSL and the receipt 40 thereof Exhibit P/23 was submitted. The other witness is PW16. He has also taken some of the articles to the FSL after issuance of the forwarding letter from S.P. Office and deposited three sealed articles in the sealed condition in the FSL and submitted receipt for depositing the same Exhibit P/26. The reports received from FSL are Exhibit P144 and Exhibit P/45. 9. After completion of investigation, challan was submitted in the Court of Chief Judicial Magistrate, Bhilwara initially against 4 accused persons namely Khanna, Smt. Vishnu, Ladhu and Hema and investigation was kept pending against one accused Prem. The case was committed to the Court of Sessions and the learned Sessions Judge transferred the case for trial to the Court of Addl. District and Sessions Judge (Fast Track), Bhilwara. The case was committed to the Court of Sessions and the learned Sessions Judge transferred the case for trial to the Court of Addl. District and Sessions Judge (Fast Track), Bhilwara. It is pertinent to mention here that before the case was transferred to the Court of Sessions, the learned Sessions Judge framed charges under Sections 1.47, 302/149, 323/149 and 342/149. Subsequently, an additional charge-sheet was filed against accused Pram and the case was committed to the Court of Sessions and for trial it came before the learned trial Court, who framed same charges against accused Prem as were framed against other aforesaid accused persons. The learned trial Court, vide its order dated 28.9.2002 in File No. 2002/01 passed an order and clubbed both the cases and tried them together. The evidence, which was led earlier in the case and the witnesses examined earlier were re-summoned and their evidence was recorded afresh. Thus, in all there were accused in the present case. 10. During the course of trial, as many as 27 witnesses appeared from prosecution side, 46 documents were tendered and Articles 1 to 8 were produced in evidence. After close of the prosecution evidence, in the statement under Section 313 of the Cr.P.C, the accused persons denied the charges and claimed themselves to be innocent but led no evidence in defence. The learned trial Court after hearing both sides, vide its judgment and order dated 23.4.2003 in Sessions Case No. 10/2001 convicted and sentenced the accused appellants as indicated above and at the same time acquitted two accused namely Smt. Vishnu and Prem assigning the reason that the prosecution was not able to prove the case against them. Aggrieved by the aforesaid judgment and order, the present appellants filed this appeal. 11. We heard learned Counsel for the accused appellants as well as the learned Public Prosecutor for the State and carefully scrutinised the evidence available on record. 12. Learned counsel for the appellants argued that the learned trial court has misread the evidence, therefore, the judgment of conviction and order of sentence passed against the accused appellants is liable to set aside as it is based on conjectures and surmises. 12. Learned counsel for the appellants argued that the learned trial court has misread the evidence, therefore, the judgment of conviction and order of sentence passed against the accused appellants is liable to set aside as it is based on conjectures and surmises. It was contended that there is variance between the medical evidence and the evidence of the eye witnesses PW5, PW6 and PW10 Sanjay and in fact they have not seen the occurrence, therefore, the learned trial Judge was in error while recording finding of guilt against the accused persons, on the basis of their testimony believing to be a true version of the incident, which is not based on proper appreciation of evidence. The learned Counsel in the last submitted that simply on the basis of the alleged recovery the accused appellants were not liable to be convicted and sentenced. 13. On the other hand, it was submitted by learned Public Prosecutor that the learned trial Court has properly appreciated the evidence and the findings recorded by the learned trial Court are based on cogent reasons, therefore, no interference is required to be made by this Court. 14. We have considered the rival submissions made by the parties 4o before us. 15. Before proceeding further in the case, we shall first examine the medical evidence in the case. 16. PW27 Dr. Yashpal Singh has stated that on 6th October 1999 he was posted as Senior Medical Jurist in M.G. Hospital. Bhilwara. On that date he conducted postmortem on the dead body of deceased Sikander on police requisition and found following injuries on the person of deceased. 1. Abrasion 3'1 X 1" on back of neck. 2. Abrasion 8" X 1/4" on middle of neck below extending up to back on both side. 3. Multiple abrasions (4 in number) 2" X 1/4" on right side of face, cheek and mandibular region. 4. Multiple abrasions (5 in number) 1" X 1/4" on left said of face maxillary nose and mandibular region. 5. Multiple abrasions (4 in number) ZI X 1" on supra scapular, scapular and infra scapular region. 6. Multiple abrasions (3 in number) 11' x 1/2" on left scapular infra scapular and thorasic region. 7. Multiple abrasions (6 in number) 2" X 1/4" on left lumber region. 8. Multiple abrasions (4 in number) 1' X 1/4" on back, renal region left Iliac fossa. 9. 6. Multiple abrasions (3 in number) 11' x 1/2" on left scapular infra scapular and thorasic region. 7. Multiple abrasions (6 in number) 2" X 1/4" on left lumber region. 8. Multiple abrasions (4 in number) 1' X 1/4" on back, renal region left Iliac fossa. 9. Multiple abrasions (10 in number) 21' X 1/4" on both gluteal region. 10. Multiple abrasion 1" X 1/2" on left leg over upper region and knee. 11. Multiple abrasion 2" X 1" on right leg front and back and right knee. 12. Multiple abrasion (6 in number) 1'1 X 1/2" on covering the whole chest. 13. Contusion 31' X 3" on left forearm 14. Contusion 1" X 1" on left hand. 15. Abrasion with swelling 3" X 1" on right arm. 16. Contusion with swelling 2" X 1" on right shoulder. 17. Contusion with swelling 3" X 1" on left arm. 18. Abrasion 1" X 1" on left shoulder. 17. In his opinion, the injuries were sufficient in the ordinary course of nature to cause death. The deceased died due to shock and injuries sustained on neck, liver and chest. The postmortem report prepared has been proved, which is Exhibit P/39. In the cross examination, he has stated that Injury No. 1 to 18, found to be ante-mortem, were simple in nature. He has further stated that on the dead body there was no mark to suggest that the injuries were inflicted by chain or Rassa (rope). The witness has clarified that he did not see any such mark over the neck. He has further stated that no lacerated wound was present on the person of the deceased. He has also admitted that if a person falls from some height then it is possible to sustain such injuries as were sustained by the deceased. It has also been stated by him that there was no mark of injury over and inside the anus of deceased to suggest that something was inserted in anus. 18. A perusal of the statement of PW27 Dr. It has also been stated by him that there was no mark of injury over and inside the anus of deceased to suggest that something was inserted in anus. 18. A perusal of the statement of PW27 Dr. Yashpal Singh is suggestive of two important aspects of the case, firstly that there were no marks of injury found over the neck of deceased to draw a conclusion that the neck of deceased was tied with rope as stated by the alleged eye-witnesses and secondly that there was no injury found in or around the anus to suggest that something hard was inserted in the anus of the deceased as stated by the eye-witnesses. In the other medical evidence, PW11 Dr. Rajendra ao Lodha and PW12 Dr. Avdesh have been examined. These two witnesses have been examined to prove the injuries reports of PW5 Smt. Radha, PW6 Manohar, PW10 Sanjay and PW19 Smt. Roshni. The injury report of PW5, PW6 Manohar, PW10 Sanjay and PW19 Smt. Roshni. The injury report of PW5 Smt. Radha Exhibit P/18 makes a mention that she made complaint of pain on the back region. The injury Report Exhibit P/16 of PW6 Manohar mentions two bruises; one on the upper part of back and the other at the upper part of the left scapular region, shoulder, and one lacerated injury on the right ear. According to PW11, all the injuries were simple in nature. The Injury Report (Ex.P. 17) of PW 10 Sanjay mentions of so two bruises one on the upper part of back and the other at the lower part of the back. The injury report (Exhibit P/19) is of Smt. Roshni mentioning one bruise on he buttocks. A perusal of the above injury reports is suggestive of the fact that the injuries were simple in nature and could be the result of fall or could be self inflicted. 19. In the light of medical evidence, now it is to be seen as to whether the eyewitnesses, who have been examined in the case have given the true version of the incident before the Court and their testimony inspire confidence? 20. In the present case, the eyewitnesses are PW5 Smt. Radha mother of the deceased, PW6 Manohar-father of the deceased, PW7 Kanhaiya, PW10 Sanjay and PW19 Smt. Roshni. Alongwith the evidence of above witnesses. the statement of PW13 Nanda is also relevant. 21. 20. In the present case, the eyewitnesses are PW5 Smt. Radha mother of the deceased, PW6 Manohar-father of the deceased, PW7 Kanhaiya, PW10 Sanjay and PW19 Smt. Roshni. Alongwith the evidence of above witnesses. the statement of PW13 Nanda is also relevant. 21. PW5 Smt. Radha has stated that while she along with her husband and kids were at the well of one Kanji Gurjar, at that time PW10 Sanjay came there and informed that the deceased was taken by the accused persons namely Khanna, Prem, Hema and Ladiya from his house. He also followed and saw that deceased was taken to the house of accused Khanna and there all the accused were beating the deceased by lathi, pipe, chain etc. The witness has stated that accused persons Khanna, Ladia, Hema and Prema were respectively having in their hands Rassi, wooden stick, belt and a cycle chain and Smt. Vishnu was giving beatings by fists and legs. The witness has further stated that on the information of Sanjay (PW10) they immediately reached the house of accused Khanna and also tried to save the deceased but the accused persons tied her by a Rassi with a babool tree and her husband with a large stone. The witness has further stated that when their son fell down, he was taken in the room and his legs were tied by rope and was hanged with a hook attached to the roof. Pipe and chilly power was inserted in the anus of the deceased and thereafter the rope by which the deceased was hanged, loosened which resulted in fall of the deceased and subsequently his body was thrown out of the house. The witness has stated that the accused thereafter ran away. The witness has also stated that a written report of the incident Exhibit P/5 was lodged in the police station. In the cross examination she has stated that in the first information report names of 12 persons were mentioned because all of them were family members of the accused persons but in fact only 5 persons gave beatings to the deceased. When she was confronted with the police statement Exhibit D/1 where names of only 4 persons were mentioned, she stated that she does not know about that. When she was confronted with the police statement Exhibit D/1 where names of only 4 persons were mentioned, she stated that she does not know about that. Other contradictions/omissions have also been brought on record like by whom they were released because in the statement under Section 161 of Cr.P.C the names of persons who helped them in untying were of Kanhaiyalal and Raeesa. A perusal of the statement of PW5 Smt. Radha reveals that deceased was given merciless beatings and in his anus chillies were inserted with the aid of a pipe and the deceased was dragged and was also hanged. The legs of the deceased were also tightened with the rope. PW27 Dr. Yashpal Singh has admitted in the cross examination that there were no mark of the injuries on the neck, anus and no marks were there of dragging on the person of the deceased. It is pertinent to mention here that on pant and chaddi of deceased no blood was found. 22. Another eye-witness is PW6 Manohar, who is the husband of PW5 and father of the deceased. In his statement though he has stated what PW5 had stated but in the cross-examination he has admitted that the incident was intimated to him by PW10 Sanjay while he was at Kanji's well and thereafter he along with his wife went to accused Khanna's house and did not see the accused persons there. The witness has further admitted in the statement recorded on 3.12.2002 that whatever he has stated regarding the incident is on the basis of information given to him by PW10 Sanjay. A perusal of the cross examination is suggestive of the fact that in fact he had not seen the incident and he reached at the spot along with his wife on the basis of information of the incident given to him by PW10 Sanjay, while he along with his wife PW5 Radha was at Kanji's well. If that is so, then the statement of PW5 Smt. Radha when she says that she has seen the occurrence is not of worth reliance particularly when it does not find corroboration by the medical evidence. If that is so, then the statement of PW5 Smt. Radha when she says that she has seen the occurrence is not of worth reliance particularly when it does not find corroboration by the medical evidence. The learned trial Judge, though has admitted that there is variance of serious nature which creates doubts in the testimony of these two witnesses but still he could consider it reasonable and proper to draw a conclusion that in fact these two witnesses had seen the occurrence. in our humble opinion is not a proper appreciation of evidence and in fact evidence has been misread. it is correct that it is the duty of the Court to find out the truth after careful scrutiny of the evidence but at the same time it is also the duty of the Court to see that if the infirmities in evidence found are of serious nature and suggestive of the circumstance that the witnesses were not telling the truth before the Court on most material aspects of the incident then in our view it would not be safe to base conviction on such testimonies and it requires to be discarded. 23. Along with the above two most relevant eye witnesses, the evidence of PW10 Sanjay may also be seen. PW10 Sanjay has stated in the Court that the deceased was taken from his residence by accused Khanna, Hema, Ladu and Prema on the day of incident in the evening. He has further stated that he went thereafter at the well of Kanji and there he narrated the entire incident to PW5 and PW6. The witness has stated that accused persons were giving beatings by lathi, chain etc. The witness has stated that after giving information he had gone to his house. He has stated further that at about 10 or 10:30 PM in the night he and his family members heard hue and cry near the house then he alongwith his mother and brother went to accused Khanna's house and saw that PW5 Smt. Radha and PW6 Manohar were found tied by a Rassi with a babool tree and with a stone respectively. In the cross examination. the witness has not accepted the suggestion that in fact he had after informing the witnesses PW5 Smt. Radha and PW6 Manohar went with them to Khanna's house. In the cross examination. the witness has not accepted the suggestion that in fact he had after informing the witnesses PW5 Smt. Radha and PW6 Manohar went with them to Khanna's house. The witness has stated that in fact after giving information he did not accompany them but in fact went to his house. If we analyze the statement of this witness then it appears that whatever PW5 and have stated that PW10 Sanjay informed them about the incident and he went with them to the spot and saw the incident, appears to be a false no version of the incident because the witness has specifically denied that after giving information to PW5 and that the accused were beating the deceased, he went to his house. The infirmity that has come on record in the statement of PW10 Sanjay is of material significance. This witness has also been confronted with his police statement Exhibit D/4 regarding the manner in which the accused gave beating was missing then the witness replied that he does not know the reason why it was not mentioned in his police statement. Thus, it appears that all the three witnesses have narrated different version of the incident. 24. PW 13 Nand Singh's evidence is also relevant for the purpose of so examining the correctness of the statements of PW5 and PW6. This witness has stated that on 6.10.1999 he was posted as ASI at Police Station, Pratap Nagar and while he along with other police officials was on patrolling duty in the night at about 12:30. they received a wireless message and on account of that they reached in the colony of Sanshis where the incident had taken place. He has stated further that at that time. Sikander the deceased was lying unconscious outside the house of accused Khanna. The witness has also stated that the mother of deceased and 2-3 other ladies were found sitting there. Sikander was thereafter taken to the hospital by them and the doctor declared him dead. In the cross examination, he has stated that when he saw the deceased he found him in an unconscious state. The witness has also stated that the mother of deceased and 2-3 other ladies were found sitting there. Sikander was thereafter taken to the hospital by them and the doctor declared him dead. In the cross examination, he has stated that when he saw the deceased he found him in an unconscious state. The statement of this witness is clearly suggestive of the fact that at about 12:30 in the mid night when he was on patrolling duty with other police officials, he received a 10 wireless message and he was the person who took the deceased to the hospital and if that is so, then the incident as stated by PW5, 6 and 10 becomes doubtful. 25. Another eye witness is PW7. He has not supported the prosecution version and it is not necessary to discuss his evidence in detail. The learned trial Court at Para 9 of the judgment had admitted that this witness is not reliable one. The last eyewitness is PW19 Smt. Roshni, who has turned hostile. She too has not supported the prosecution version. It is also to be noticed here that this witness has been named in the FIR as an accused person. 26. A careful scrutiny of the statements of above witnesses is clearly suggestive of the fact that PW5 and have not seen the incident for the reason that PW6 Manohar, who is father of the deceased has stated that after receiving the information from PW10 Sanjay he went to the spot and there he did not see the accused persons. PW5 had gone with this witness. The statements of these two witnesses have also not been corroborated by the medical evidence. The evidence of PW13 Nand Singh, ASI, Police Station, Pratap Nagar IE suggestive of the fact that at about 12:30 (in the midnight on the day of incident) he saw the deceased lying unconscious outside the house of accused Khanna and he took him to hospital. Thus, it appears, the evidence brought on record is not sufficient to prove the guilt of accused persons. 27. In view of what has been discussed above while analyzing the evidence of the eyewitnesses individually, it appears that the witnesses have not seen the occurrence. Therefore, on the basis of above alleged eye-witnesses finding of guilt recorded against the accused appellant cannot be said to be based on proper appreciation of evidence. 27. In view of what has been discussed above while analyzing the evidence of the eyewitnesses individually, it appears that the witnesses have not seen the occurrence. Therefore, on the basis of above alleged eye-witnesses finding of guilt recorded against the accused appellant cannot be said to be based on proper appreciation of evidence. It is to be seen further that in the same set of circumstances the other two accused persons namely Smt. Vishnu and accused Prem have been acquitted. After carefully examining the evidence of eyewitnesses, we are of the opinion that they have not given a true version of the incident and it is not safe to rely on their testimony for basing conviction. The initial version of PW5 is regarding accused persons in the first information. Then challan was filed against 4 accused persons and additional charge-sheet was filed against one accused Prem. Smt. Vishnu and Prem have been acquitted of the charges framed against them. The evidence of the eyewitnesses as discussed hereinabove is contrary to the medical evidence and there is variance of serious nature as discussed above in the evidence of PWs. 5. 6, 10 and 13 also. 28. In view of above discussion. we are of the opinion that prosecution has not been able to prove the guilt of the accused appellants by placing on record reliable evidence to hold guilty of the charges levelled against them. The learned trial Court has not properly appreciated the evidence rather misread the evidence, as such the conviction and sentence recorded against accused appellants deserves to be set aside. 29. In the result, the appeal of accused appellants is allowed, judgment of conviction and order of sentence passed against them is set aside and they are acquitted of the charges framed against them. The accused appellants are in jail. They shall be released forthwith if not required in any other case.Apply allowed - Conviction set aside. *******