Judgment ( 1. ) THE appellants have preferred this appeal against the judgment dated 29-9-1999 of the learned Additional Sessions Judge, Lakhnadon passed in S. T. No. 6/99 by which the appellants have been convicted under Section 302 of the IPC and sentenced to imprisonment for life and fine of Rs. 5000/ -. In default of payment of fine, they have been directed to undergo further R. I. for one year. ( 2. ) THE appellants were prosecuted for committing murder of Veer Singh Lodhi on 4-11-98. The case of the prosecution was that on that date Veer Singh had taken his cattle to the field and while Godhan Singh (P. W. 1) was answering the call of nature, he heard the alarm raised by the deceased. He, therefore, rushed to the place of the incident and witnessed that two accused were assaulting him, each with lathi. By the time he reached the spot, Veer Singh had been done to death. Member and Hakku also reached the spot and seeing them approaching, the accused ran away. The report of the incident was lodged by Godhan Singh on that very day at 1:00 oclock on the basis where of a marg was registered vide Ex. P-2. The police proceeded to the place of the incident and prepared inquest report (Ex. P-10) and spot map (Ex. P-11 ). For post-mortem, the body was forwarded and report obtained. Statements of witnesses were recorded and charge-sheet was filed. ( 3. ) ON charge having been framed against the accused, they denied having committed any offence and pleaded that they were innocent. They examined Dhansingh (D. W. 1), Shyamwati Bai (D. W. 2) and Basanti Bai (D. W. 3) in their defence. On trial, however, the learned Judge found them guilty and convicted and sentenced them as stated hereinabove. ( 4. ) LEARNED Counsel for the appellants submits that the circumstances on record rule out the possibility of Godhan (P. W. 1) and Member (P. W. 2) being eye-witnesses to the incident and the evidence shows that on finding the dead body of the deceased Veer Singh, evidence was created, rather than collected, to rope in the accused persons. Learned Counsel has further pointed out that the case of the prosecution till receipt of the post-mortem report (Ex. Learned Counsel has further pointed out that the case of the prosecution till receipt of the post-mortem report (Ex. P-3), to the effect that the deceased had sustained crush injury was that he had been be laboured only by lathis and it was to bring the ocular testimony in accord with the medical evidence that the prosecution witnesses modulated their version. ( 5. ) ACCORDING to the prosecution, FIR (Ex. P-1) was lodged by Godhan (P. W. 1) on the same day at 13:00 hours in respect of the incident which was discovered at 6. 00 A. M. , though the police station was just six kilometers from the place of the incident. In the FIR, it is stated that Munna and Ramdayal assaulted the deceased with lathis. In Ex. P-4, seeking opinion of the doctor with respect to the lathis allegedly used in the commission of the offence, it is mentioned that death of the deceased was caused by the accused persons by means of lathis. Most significant document in this behalf is the requisition (Ex. P-12) sent on 4-11-98 at 4. 50 P. M. in which it has been stated that the deceased was laying in the field in injured condition and therefore his body being sent for post-mortem. ( 6. ) ON the basis of the recital contained in requisition (Ex. P-12), learned Counsel for the appellants submits that although one may not insist upon the requirement of mentioning in the prosecution case the names of the assailants in the requisition for post-mortem, but since doctor is required to address himself to the injuries found on the body, the weapons used, if known, are mentioned to render assistance to the doctor to come to proper conclusion. Learned Counsel submits that in the requisition there is not even a whisper of any case having been registered indicating commission of offence and what the document recites is only the fact that the dead body was found in the field and it was forwarded for post-mortem. Learned Counsel, therefore, submits that if this was the position on 4-11-98 at 4. 50 P. M. , it makes the FIR purportedly lodged at 1. 00 P. M. doubtful and so also all the corresponding documents. ( 7. ) THE prosecution has not placed any material on record to show compliance of Section 157, Cr. Learned Counsel, therefore, submits that if this was the position on 4-11-98 at 4. 50 P. M. , it makes the FIR purportedly lodged at 1. 00 P. M. doubtful and so also all the corresponding documents. ( 7. ) THE prosecution has not placed any material on record to show compliance of Section 157, Cr. PC with regard to sending of the report to the jurisdictional Magistrate. This again creates strong doubt about the FIR having been lodged at 1. 00 P. M. on the same day especially when in the requisition (Ex. P-12) sent at 4. 50 P. M. there is no indication that an offence stood committed. ( 8. ) THE prosecution, in order to unfold the prosecution story, has examined two witnesses namely Godhan Singh (P. W. 1) and Member (P. W. 2 ). Godhan Singh (P. W. 1) has deposed that while he was in the field answering the call of nature, he heard the cries of deceased and rushed to the place. He witnessed that the accused persons were assaulting the deceased with stone and lathi. He has been duly confronted with his case diary statement (Ex. D-1) as also the FIR (Ex. P-1) with regard to the omission of the use of stone in commission of the offence. Member (P. W. 2) had also stated that accused had assaulted with lathi and stone but has not been able to explain the omission of the use of stone in his case diary statement. His case diary statement had duly been proved by the Investigating Officer Amod Singh Pandram (P. W. 7 ). Learned Counsel submits that introduction of the use of the stone in commission of the offence became necessary after receipt of the post-mortem report to the effect that the deceased had crush injury. In the deposition of the doctor Raj Narayan Ozha (P. W. 4), he has frankly stated that the stone employed in causing the injury could have been even 50 kgs in weight, but not less than 12 to 15 kgs. It is therefore clear that by means of lathi which was initially used, according to the prosecution case, such an injury could not have been caused and to bring the case in conformity with the medical evidence, the ocular testimony was modulated by the two eye-witnesses to substantiate the prosecution case. It is therefore clear that by means of lathi which was initially used, according to the prosecution case, such an injury could not have been caused and to bring the case in conformity with the medical evidence, the ocular testimony was modulated by the two eye-witnesses to substantiate the prosecution case. The falsity of the case, however, stood exposed on account of the omission in the case diary statement. ( 9. ) IF the prosecution case is examined from another perspective, it becomes further obvious that the witnesses could not have seen the assault otherwise in Ex. P-12 requisition the police would not have written that the body was found in the field without giving further description of the case of the prosecution. Be that as it may, from either angle, there is a strong doubt in the prosecution case of which benefit should accrue to the appellants. ( 10. ) LEARNED Counsel for the appellants has invited attention to the decision of the Supreme Court in Mathura Yadav @ Mathura Mahato v. State of Bihar [2002 Cr. L. Reporter (SC) 573], in which where witnesses had modulated their version, the evidence was not accepted in absence of corroboration from independent sources. Para 8 of the report reads as under :-" 8. We notice that the Courts below have implicitly accepted the evidence of P. Ws. 1, 2, 4 and 5 without properly considering the deficiencies and the contradictions in their evidence. Of course, in regard to the nature of the attack, the injuries suffered by the deceased and the individual overt act of the accused person, there is a possibility of some discrepancy which should not in the normal course affect the prosecution case. But, in our opinion, some of the omissions and discrepancies in the evidence of the eyewitnesses and rest of the prosecution case are glaring. For example, P. W. 4 who is the complainant and who claims to have witnessed the incident of attack had not stated in his complaint that the accused had used the sticks. According to his complaint, only dangi was used. It is only in his oral evidence, after having noticed the nature of injury, the use of stick is brought in. Like the discrepancies in the evidence of P. Ws. According to his complaint, only dangi was used. It is only in his oral evidence, after having noticed the nature of injury, the use of stick is brought in. Like the discrepancies in the evidence of P. Ws. 1 and 2, we would not have attached much significance to this fact but for the other omissions in the prosecution case. Take for example the fact that the defence has seriously disputed the presence of P. Ws. 1, 2, 4 and 5 at the place of the incident and even though there were two independent eye-witnesses, they were not examined by the prosecution but their statements had been recorded. It so happens that these are the only two other eye-witnesses who are not related to the deceased who according to the prosecution had witnessed the incident. The High Court, in our opinion, very lightly discarded this argument of non-examination holding that these witnesses had come subsequent to the attack. Here, we differ from the High Court because from the evidence of the prosecution it is clear that they had arrived at the place of the incident immediately after the attack took place. Assuming that these witnesses had not seen the entire attack, they would have certainly corroborated the testimony of the eye-witnesses at least to the extent of their presence which is now being seriously disputed in such a situation, there being no such corroboration from independent sources, we find it rather difficult to accept the evidence of P. Ws. 1, 2, 4 and 5. Next, we notice that there is a serious discrepancy in the prosecution case as to the time when the investigation of the case started. It is seen from the record that P. W. 4 had lodged the complaint at about 10. 30 p. m. at the Police Station. But P. W. 1 says that P. W. 6 came to the place of the incident at about 8. 00 or 9. 00 that evening itself and held the inquest and thereafter took the body of the deceased away for post-mortem. In the background of the deficiency in the prosecution case, the evidence of P. W. 6 in this regard does not inspire confidence. There is also no material to show at what time the FIR reached the jurisdictional Magistrate. 00 that evening itself and held the inquest and thereafter took the body of the deceased away for post-mortem. In the background of the deficiency in the prosecution case, the evidence of P. W. 6 in this regard does not inspire confidence. There is also no material to show at what time the FIR reached the jurisdictional Magistrate. In this regard, it is not so simple to reject the evidence of P. W. 1 by holding that there was some confusion in the mind of P. W. 1 as to the time of arrival of P. W. 6 because apart from saying that P. W. 6 came to the village on the date of the incident at about 8. 00 - 9. 00 p. m. , she also says that P. W. 6 took away the body of the deceased that night itself. This contradiction fully supports the case of the defence as to the coming into existence of the complaint of P. W. 4 which must be taken note of by us. It is also relevant to notice the fact that the seizure of the blood-stained mud and grass is not established beyond reasonable doubt and there has been no recovery of any weapon from the accused. Even the motive suggested is very weak and stale. " ( 11. ) RELIANCE has also been placed on Badri v. State of Rajasthan ( AIR 1976 SC 560 ) in which Their Lordships have observed that if a witness, who is the only witness against the accused to prove a serious charge of murder, can modulate his evidence to suit a particular prosecution theory for the deliberate purpose of securing a conviction, such a witness can not be considered reliable and no conviction can be based on his sole testimony. Though there are two eye-witnesses in the present case, both being unreliable as both have modulated their version, their evidence can not be acted upon. ( 12. Though there are two eye-witnesses in the present case, both being unreliable as both have modulated their version, their evidence can not be acted upon. ( 12. ) THOUGH in view of the fact that the two appellants were mentioned as the assailants in the FIR, a suspicion is created against them, yet, in view of the fact that the prosecution witnesses in their zeal to bring the case in line with the medical evidence have prevaricated and the evidence shows that initially it was not known as to who had caused injuries to the deceased, it would be hazardous to sustain the conviction of the two appellants on the prosecution evidence on record. ( 13. ) CONSEQUENTLY, this appeal is allowed. The conviction of the appellants and the sentence awarded to them are set aside. They are acquitted of the charges. They be set at liberty forthwith, if not required in connection with any other case.