JUDGMENT 1. These three appeals arise out of the common judgment and order dated 5.10.2001 passed by learned Addl. Sessions Judge (Fast Track), Hanumangarh in Sessions Case No.54/2001, as such, the same are being disposed of by this common judgment. 2. The appellants were the accused on the file of learned Addl. District & Sessions Judge (Fast Track), Hanumangarh bearing Sessions Case No.54/2001. The learned Judge, vide his judgment dated 5.10.2001, convicted the three accused-appellants as under: Accused Sentence Awarded Mahendra Singh U/s. 302 IPC - Life imprisonment. Mani Singh alias Ranjeet Singh & Kalu Ram alias Kali U/s. 302/34 IPC - Life imprisonment and fine of Rs.100/-, in default thereof to suffer three months' R.l. 3. Briefly stated, the facts giving rise to the present case are that prosecution was initiated on the basis of Parcha Bayan Ex.P/19 of Jagga Singh (PW4) recorded by PW8 Sunil Jhajhadia, SHO, Police Station, Tibi in the Govt. Hospital, Hanumangarh Town on 25.6.1998 at about 1.30 PM stating inter-alia therein that Gurtej Singh (since died, hereinafter to be referred to as 'the deceased') was his nephew and was living with them since he was infant as his parents had died. The deceased was employed as driver of truck belonging to one Kripal but was not attending his work for last three months prior to the incident because of his illness. While deceased was coming from Hanumangarh town to Tandoorwali village at about 7 PM, he met accused Mahendra Majbi near the wine Theka along with one unknown person who insisted the deceased to take liquor to which deceased denied saying that he was not in habit of taking liquor. This annoyed accused Mahendra and a quarrel took place between them, the incident was narrated by the deceased to him (PW4 Jagga Singh). It was also stated that he was intimated by the deceased that Mahendra gave him a threat to kill him. On the other day, wife of Mahendra came to the house of the informant and told that deceased had beaten her husband Mahendra, therefore they have decided to kill him. Hearing this, the informant asked the wife of accused Mahendra that he will made the deceased understand not to repeat such incidents. She, thereafter, left the place. On the other day, wife of Mahendra came to the house of the informant and told that deceased had beaten her husband Mahendra, therefore they have decided to kill him. Hearing this, the informant asked the wife of accused Mahendra that he will made the deceased understand not to repeat such incidents. She, thereafter, left the place. It is further stated that at about 3 in the midnight, informant, his wife and children were sleeping in the courtyard of their house on cots. The deceased was also sleeping there a little away and his nephew Jagdev and his mother Mayadevi were also sleeping at a little distance from them on cots. Suddenly, the informant PW4 woke up and saw that accused Mahendra having an axe in his hand, his nephew Mani Singh the accused had a lathi in his hand and accused Kalia of Talwada were standing near the cot of the deceased. Accused Kalia and Mani Singh asked accused Mahendra to inflict an axe blow on the neck of deceased so that he may be killed. On hearing this, the informant raised an alarm. Hearing the alarm made by PW4, his wife Kulvindra Kaur, Jagdev and Maya Devi stood up from their respective cots and came running but the deceased did not wake up. Accused Mani Singh at that time was standing near deceased having a lathi in his hand while Kalia was standing near his head and accused Mahendra near the cot of the deceased. Accused Mahendra gave an axe blow on the neck of Gurtej to kill him and on raising alarm by all of them the three accused ran away quickly. When informant and others reached near the deceased, they found that blood was oozing out from the injury sustained by the deceased at his neck and he was silent. Informant PW4 immediately rushed to bring Sadhu Baori's jeep and in that jeep he along with Preetam Chand, Birbal, Sadhu Baori and Driver Ranjeet took the deceased to Hanumangarh town and the deceased was got admitted in the govt, hospital in unconscious state. While the deceased was unconscious, the doctor declared him dead at about 1 PM. The three accused have intentionally killed the deceased. 4. While the deceased was unconscious, the doctor declared him dead at about 1 PM. The three accused have intentionally killed the deceased. 4. The above Parcha Bayan Ex.P/19 disclosed an offence committed by the accused persons under Section 302 read with Section 34 of the IPC, as such Parcha Bayan was sent through Surendra Singh FC to the SHO, PS Tibbi for registering a case where FIR No.184/98 under Section 302/34 IPC was registered and a regular FIR Ex.P/32 was chalked out and investigation commenced 5. During the course of investigation, on 25.6.1998 Fard Surat Hall Lash, Panchayatnama of the dead body and site-plan respectively Exs.P/2, P/3 and P/7 were prepared in presence of Hansraj, Chand Singh and Banwari. After postmortem, the dead body was handed over for cremation to PW4 the uncle of the deceased, through Memo Ex.P/4. Post-mortem Report is Ex P/6. The site was inspected and site-plan Ex.P/24 was prepared on 26.6.1998. Lungi smeared with blood, blood-smeared pant, blood-smeared soil and control soil were taken by the police respectively through Memos Ex.P/24, P/23, P/8, P/9 and P/10. One pair of Chappal and black belt smeared with blood was also seized at the spot through Memo Ex.P/11. Two pieces of Niwar smeared with blood and two pieces of Niwar having no blood on them were seized and sealed through Exs.P/12 & P/13 respectively. Photographs of the site were taken. Accused persons Mani Singh, Mahendra Singh and Kali alias Kalu Ram were arrested through Exs.P/25, P/26 and P/27 respectively on 26.6.1998. Accused Mani Singh got recovered a blood-smeared lathi from his house. On the basis of his disclosure statement, the memos are respectively Ex.P/14 and P/28. The accused Mahendra Singh gave disclosure statement Ex.P/28 in relation to an axe and got recovered the axe smeared with blood through Memo Ex.P/16 from his house. Site-plans of the place of recovery of the axe and lathi were prepared in presence of witnesses. The articles seized and sealed were sent to FSL through a forwarding letter issued from the office of the S.P Hanumangarh. The articles in sealed condition were sent to FSL. The receipt of depositing the same in sealed condition was received which is Ex.P/31. The report of FSL is P/33. 6. After usual investigation, challan was submitted against accused persons in the Court of Judicial Magistrate, Tibbi. The articles in sealed condition were sent to FSL. The receipt of depositing the same in sealed condition was received which is Ex.P/31. The report of FSL is P/33. 6. After usual investigation, challan was submitted against accused persons in the Court of Judicial Magistrate, Tibbi. In due course of time, after committal, ultimately it came for trial in the Court of Addl. District & Sessions Judge, Fast Track, Hanumangarh. 7. On 11.06.2001, charge was framed under Section 302/34 IPC against accused persons who denied the charges and claimed trial. In support of its case, the prosecution has produced 12 witnesses and tendered in evidence 39 documents. In the statement recorded under Section 313 of the CrRC. accused Mani Singh and Mahendra Singh denied the prosecution case and stated that a false case has been made against them. Accused Kalu Ram stated that he along with Jagga Singh PW4 was jointly cultivating field but as the theft of Jagga Singh was told by him he has been falsely implicated in the case. No evidence in defence has been produced. 8. The learned Addl. Sessions Judge (Fast Track), Hanumangarh after hearing both sides convicted and sentenced the accused persons vide its judgment dated 5.10.2001 as indicated herein above. Hence, the three accused have preferred these appeals; two by sending appeals from jail and one represented by his counsel. 9. We have heard both sides and perused the material available on record. 10. It has been contended on behalf of accused-appellants that in the instant case the testimony of PW4 Jagga is not reliable for the reason that whatever he had stated in the Parcha Bayan Ex.P/19 has not been stated in the Court. According to learned counsel, his statement has not been corroborated by other prosecution witnesses namely PW5 Kulwinder Kaur (wife of PW4 Jagga) and PW6 Maya Devi & PW7 Sadhu Ram. It has also been stated that in Parcha Bayan Ex.P/1 there is mention of lantern but it has not been stated in the police statement and in the statement before the Court that there was a lantern and in its light he and the witnesses have seen accused Mahendra inflicting Kulhari blow on the neck of the deceased. The learned counsel submitted that there is no evidence on record to justify the conviction recorded by the learned trial Court. 11. The learned counsel submitted that there is no evidence on record to justify the conviction recorded by the learned trial Court. 11. On the other hand, the learned Public Prosecutor has supported the judgment of conviction and order of sentence passed by the learned trial Court. It has been submitted that the trial Court has given cogent reasons for basing conviction against accused-appellants. 12. We have considered the rival submissions made before us. 13. In the present matter, there is no dispute about the fact that deceased died due to neck injury, which is mentioned in the Injury Report Ex.P/5 and in the Post-mortem Report Ex.P/6. The cause of death assigned by PW 2 Dr. Rajendra Kumar Gupta was shock due to injury to veins of left side of neck and fracture of cervical vertebra. His report indicates that deceased died not a natural death but his death was homicidal. He found : 1. Incised wound on the body of deceased measuring 31/4 x 1/2 x upto cervical vertebra. 2. Vertebra fracture on the right side of neck 2" below lateral and posterior muscles. 3. Cut Veins right side right side of wound under lateral and posterior on the neck. 4. 3rd cervical vertebra fracture. The Postmortem Report records its conclusions as under : 1. Injury due to sharp weapon - ante-mortem in nature. 2. Other cause of death is injury to veins of left side of neck and fracture of cervical vertebra leading to shock. 3. Injury sufficient to cause death in ordinary course of nature. 14. Now, it is to be seen as to whether the prosecution has been able to prove the case against accused person and they were responsible for causing death of Gurtej ? 15. PW4 Jagga in his statement has stated that two years before recording of his statement in the Court at about 3 AM in the night when he was sleeping in his house along with his children and wife, at that time deceased was sleeping two steps away from them. Accused Mahendra, Mani and Kalia came there. Mahendra had a kulhari in his hand and Mani had a lathi. Suddenly, he woke up and heard Kalia saying Mahendra to inflict an axe blow on the deceased. On hearing this, he made a cry and the accused ran away. Accused Mahendra, Mani and Kalia came there. Mahendra had a kulhari in his hand and Mani had a lathi. Suddenly, he woke up and heard Kalia saying Mahendra to inflict an axe blow on the deceased. On hearing this, he made a cry and the accused ran away. He has further stated that Mahendra inflicted an axe blow on the neck of deceased Gurtej. It has further been stated that the deceased was taken to hospital. The witness says further that when he made alarm, his wife woke up. In the cross examination, the witness has stated he got up for the reason that his dogs were barking outside. It has further been stated by him that when he shouted, nobody came there. Only his wife got up and at that time accused had run away. In Parcha Bayan Ex.P/19 it has been stated that lantern was glowing and on his making shout, his wife, Jagdev and Maya Devi woke up and saw that Mahendra giving an axe blow on the neck of the deceased. The factum of lantern glowing and also that the other persons who were sleeping near PW4 saw the occurrence has not been stated by this witness in his statement before the Court. It is also significant to mention here that in the site-plan Ex.P/7 the distances of cots shown from the cot of deceased of witnesses is 60 fts. and further it has not been mentioned that there was any lantern burning. The witness stated in the cross-examination that only he saw the incident. Thus, it appears that this witness has made improvement or suppressed the origin of the incident as his statement has not corroborated Parcha Bayan Ex.P/19. An important fact of there being light of lantern is completely missing in his statement. Another important fact that other persons had also seen the occurrence is also not there in his statement in the Court. 16. The statement of PW4 Jagga when examined in the light of other witnesses namely PW5 Kulwinder Kaur, who is his wife, transpires that she has not stated that she had seen the accused Mahendra inflicting an axe blow on the neck of the deceased. She simply says that her husband told her that accused Mahendra had inflicted the axe blow. She has stated that her husband had seen the persons who killed the deceased. She simply says that her husband told her that accused Mahendra had inflicted the axe blow. She has stated that her husband had seen the persons who killed the deceased. This witness has turned hostile and has not supported the case of the prosecution so also the statement of her husband PW4 Jagga, therefore, it is not necessary to discuss her statement any further. 17. Another witness PW6 Maya Devi has also not supported the statement of PW4 Jagga and she has also not seen the incident. This witness too has turned hostile. 18. Mention of PW5 Kulwinder Kaur & PW6 Maya Devi has been made in Parcha Bayan Ex.P/19 and it has been stated that they have seen the occurrence but this fact has not been corroborated by these witnesses. 19. PW7 is Sadhu Ram, in whose Jeep the deceased was taken to hospital, has also not supported prosecution version and has been declared hostile. 20. PW8 Sunil Jhajhadia has conducted the investigation, made recoveries and also recorded statements. The FSL report Ex.P/33 received by him when perused discloses that on lathi blood could not be detected and the same is the position with regard to the axe. 21. The other witness in the case PW1 Chand Singh, who is the witness regarding Ex.P/2 Fard Surat Hal Lash and Ex.P/3 Panchayatnama, has been declared hostile. 22. PW2 Dr. R.K. Gupta, while posted as medical jurist in the Govt. Hospital, Hanumangarh has medically examined the deceased and prepared injury report Ex.P/5 and found injuries on the neck and also conducted Postmortem on the dead body of the deceased. He prepared Postmortem Report Ex.P/6. The witness in the cross-examination has stated that the injury on neck was sustained by the deceased while he was standing whereas the prosecution case is that blow of axe was given to the deceased while he was sleeping. 23. PW3 is the witness regarding Naksha Mauka, recovery memo of Pant, blanket, control soil and blood smeared soil and the seizure memo of belt etc. This witness has also turned hostile and has not supported the prosecution version. This witness has stated that one axe was recovered on the information of accused Mani Singh and the other on the basis of information given by accused Mahendra. 24. This witness has also turned hostile and has not supported the prosecution version. This witness has stated that one axe was recovered on the information of accused Mani Singh and the other on the basis of information given by accused Mahendra. 24. A careful scrutiny of the statements of above witnesses is clearly suggestive of the fact that the PW4 Jagga has not seen the incident for the reason that his wife PW5 Kulwinder Kaur and PW6 Maya Devi falsify his statement that they had seen the incident. This fact is further proved by the statement of doctor in his cross-examination in which he states that the deceased had sustained the injury while he was standing, which is against the version of PW4 as stated in Parcha Bayan Ex. P/19 wherein he sates that the deceased was sleeping on the cot and accused were surrounding him, out of them one told to give axe blow on neck of the deceased and the other followed. The statements of witnesses are also not corroborated by the FSL report which finds no blood on the articles sent for examination. Most of the witnesses for prosecution have turned hostile and not supported its case. It is further significant to mention here that the dead body of the deceased was found naked whereas as per the prosecution story all family members were sleeping in the courtyard then it is not presumable that a youngman will be sleeping in completely naked position. Thus, it appears, the evidence brought on record is not sufficient to prove the guilt of accused persons. 25. In view of what has been discussed above while analysing the evidence of the witnesses, it appears that none of the witnesses has seen the occurrence. Therefore, on the basis of their testimony finding of guilt recorded against the accused-appellant cannot be said to be based on proper appreciation of evidence. 26. After carefully examining the evidence of witnesses, 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 evidence of the witnesses as discussed herein above does not inspire confidence and there is variance of serious nature in the statements of prosecution witnesses recorded in the Court, as has been discussed above. 27. The evidence of the witnesses as discussed herein above does not inspire confidence and there is variance of serious nature in the statements of prosecution witnesses recorded in the Court, as has been discussed above. 27. In view of above discussions, we are of the opinion that the prosecution has not been able to prove the guilt of the accused-appellants by placing on record reliable evidence to prove them 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 them deserves to be set aside. 28. In the result, conviction and sentences of appellants Mani Singh alias Ranjeet Singh, Mahendra Singh and Kalu alias Kalia are set aside. Mani Singh alias Ranjeet Singh, who was ordered to be released on bail, could not be released as he did not furnish surety bonds. He is behind the bars. Mahendra Singh son of Sohan Singh is also behind the bars. They shall be released forthwith, if not required in any other case. Kalu alias Kalia is on bail. His bail bonds stand cancelled. 29. We put on record our appreciation for the counsel for the accused including amicus curiae who had argued the case in a competent manner. 30. The appeals are allowed as indicated herein above.Appeal allowed - Conviction set aside. *******