Judgment ( 1. ) THE above named twelve appellants stand convicted under Sections 148 and 302 read with Section 149 of the Indian Penal Code on two counts and each is sentenced to suffer rigorous imprisonment for three years under Section 148, Indian Penal Code and imprisonment for life with fine of Rs. 500/-, in default of payment of fine to suffer further additional R. I. for one month on each count under Section 302/149, Indian Penal Code. Being aggrieved by this judgment dated 27-10-1999 passed by learned Addl. Sessions Judge, Narsinghgarh in S. T. No. 184/1995, the appellants have come up in appeal before this Court. ( 2. ) LACONICALLY the prosecution story as put forth before the Trial Court in the charge-sheet filed by the police under Section 173 of the Code of Criminal Procedure, is that Hiralal Kalal was the resident of Village Barkheda Ghor and started living in Village Surajpol Narsinghgarh two years prior to the date of incident, Le. , 27-5-95. On 27-5-95, in the noon he had gone with Hiralal Lodhi resident of Village Barayatha and Sardarsingh Rajput of Village Surajpol, to Village Barayatha. They drank water at the house of Hiralal Lodhi. At that moment, they were informed by Sonibai (P. W. 9), mother of Hiralal Lodhi that the appellants Durjansingh, Vishwanathsingh, Moolsingh and their sons had assembled and they were having old enmity on account of land dispute with them therefore, they should leave the village. Hiralal Kalal, Hiralal Lodhi and Sardarsingh proceeded towards river Parvati. At that juncture, the appellants armed with sword, Farsi and lathis rushed towards them to assault them. Hiralal Kalal, Hiralal Lodhi and Sardarsingh started running, but they were chased by the appellants and surrounded in between Parvati river and appellant Shivnathsingh dealt a sword blow on Hiralal Kalal causing injury on the left hand, appellant No. 2 Omprakash and No. 3 Natwarsingh used lathi and other appellants conjointly started beating by sword, Farsi and lathi. As a result of beating, Hiralal Lodhi and Sardarsingh fell down on the ground. P. W. 9, Sonibai and P. W. 10, Sardarbai mother and niece (sisters daughter) of deceased Hiralal Lodhi respectively also reached following the accused persons. Hiralal Kalal boarded a truck which was standing under a mango tree and reached Narsinghgarh. As a result of beating, Hiralal Lodhi and Sardarsingh fell down on the ground. P. W. 9, Sonibai and P. W. 10, Sardarbai mother and niece (sisters daughter) of deceased Hiralal Lodhi respectively also reached following the accused persons. Hiralal Kalal boarded a truck which was standing under a mango tree and reached Narsinghgarh. At his house, father-in-law of Hiralal Lodhi and grand-father were sitting to whom he disclosed about the incident. Thereafter they reached at Police Station, Narsinghgarh and lodged the report at 6. 35 PM. The First Information Report (Exh. P-3) was recorded by the Station House Officer, P. W. 22, Ajit Patil, Inspector of Police. He also reached at the place of incident. The Station House Officer sent both the dead bodies for post-mortem examination which was performed by P. W. 17, Dr. Sharifjama Siddiqui. Exh. P-34 is the postmortem examination report of deceased Hiralal Lodhi and Exh. P-35 is the postmortem report of deceased Sardarsingh. The eye-witness P. W. 12, Hiralal also sustained injuries caused by the appellants. He was examined by P. W. 17, Dr. Sharifjama Siddiqui. His MLC Report is Exh. P-33. After due investigation, the appellants were charge-sheeted for the offence mentioned herein above. ( 3. ) ON being charged, the appellants abjured their guilt. The defence of appellant No. 2 Omprakash and No. 7 Ramanathsingh was that they were not present on the place of incident and were at Narsinghgarh with their cattle. He examined D. W. 2, Harbhajansingh. The appellant No. 3, Natwarsingh also pleaded alibi and examined D. W. 3, G. S. Nomoda on the point that this accused was in Village Dhatrawada to attend a marriage ceremony. Appellant No. 12, Shivnathsingh also took the plea Of alibi and examined D. W. 1, D. W. 4 and D. W. 5. According to him, he was serving in MPSRTC as a Conductor and on the relevant time, he was in Hoshangabad. The learned Trial Court, on conclusion of trial and hearing both the parties, finding the appellants guilty of the offences charged, convicted and sentenced as referred to above. ( 4. ) BEFORE the Trial Court as well as before this Court, learned Counsel for the appellants have not disputed the homicidal death of deceased persons Hiralal Lodhi and Sardarsingh. Even otherwise in view of the medical evidence of Dr. ( 4. ) BEFORE the Trial Court as well as before this Court, learned Counsel for the appellants have not disputed the homicidal death of deceased persons Hiralal Lodhi and Sardarsingh. Even otherwise in view of the medical evidence of Dr. Sharifjama Siddiqui homicidal death of both the deceased persons is properly proved. This doctor also proved the post-mortem reports Exh. P-34 and P-35. ( 5. ) FROM the record we gather that the conviction of the appellants is based on the testimony of P. W. 9, Sonibai, and P. W. 10, Sardarbai, mother and niece of deceased Hiralal Lodhi. The other eye-witnesses, even injured witness and lodger of the First Information Report (Exh. P-3), P. W. 2, Hiralal has also turned hostile. The independent witness P. W. 12, Laxman has also not supported the prosecution case. Rest of the witnesses were the witnesses of investigation, recording of memorandums and seizure memos. P. W. 10, Sardarbai has specifically admitted that her statement was recorded after a lapse of one and a half months, i. e. , on 22-7-95. This date of recording of statement has also been admitted by the Investigating Officer, P. W. 22, Inspector Ajit Patil, in Para 30 of his deposition. In Para 48, a specific question was put to him for the reason to record statement of material witnesses after such a long time, but he did not assign any reason for the delay. Sardarbai has also admitted in Para 2 of her deposition that prior to recording of her statement by the Police, she did not disclose about the witnessing of incident to anybody. For the first time, she disclosed before the police and thereafter, in the Court. In cross-examination Para 5 as also in other paragraphs her presence and presence of police on the date of incident in the village was established but she has failed to assign any reason as to why she did not voluntarily disclosed about witnessing the incident to the police. ( 6. ) P. W. 9, Sonibai was aged about 90 years on the date of her examination before the Trial Court, i. e. , on 27-12-95, meaning hereby that she was examined after about seven months of the date of incident in the Court. ( 6. ) P. W. 9, Sonibai was aged about 90 years on the date of her examination before the Trial Court, i. e. , on 27-12-95, meaning hereby that she was examined after about seven months of the date of incident in the Court. Both the eye-witnesses in their examination-in-chief deposed that they witnessed the incident regarding assault of both the deceased persons namely Hiralal Lodhi and Sardarsingh by all the 12 appellants with sword, Farsi and lathi. But, in cross-examination, P. W. 9, Sonibai has narrated altogether a different story and the say of this witness is that she was suffering from fever and confined to bed in her house. At that moment the appellants came in front of her house and cried that they had killed Hiralal Lodhi, Sardarsingh and were abusing Ratansingh, son of Sonibai (P. W. 9 ). They were also challenging him for beating. After hearing about the incident from the appellants, this witness Sonibai alongwith P. W. 10, Sardarbai, proceeded to the scene of occurrence along with other villagers. P. W. 10, Sardarbai has also developed the same story in her Court statement. She has also stated in her cross-examination that they sent Gopal (not examined) to Narsinghgarh with a message that material uncles were lying dead and somebody had assaulted them. This statement of the witness clearly shows that she did not witness the incident and became an eye-witness after lapse of more than one and a half months. It would be apposite to mention here that the names of both witnesses as eye-witnesses or witnesses of any event arc not mentioned in the First Information Report (Exh. P3 ). It is not necessary that the names of all the eye witnesses must find place in the First Information Report, but, looking to the facts and the circumstances of the present case, two close relations of both eye witnesses were done to death and if they were on or near the scene of occurrence, the eye witness P. W. 2, Hiralal an injured witness, would have not failed to see them and mention their names in the First Information Report. ( 7. ) IN cross-examination, both the witnesses have admitted that when the appellants reached in front of the house of P. W. 9, Sonibai, they were present in their respective houses since last more than one hour. ( 7. ) IN cross-examination, both the witnesses have admitted that when the appellants reached in front of the house of P. W. 9, Sonibai, they were present in their respective houses since last more than one hour. P. W. 9, Sonibai was confronted with her case diary statement (Exh. D-2) and she failed to assign any reason for omission of the evidence and story of extra judicial confession made by the appellants and calling Ratan for assaulting. The same is with P. W. 10, Sardarbai and all these events are missing in her case diary statement (Exh. D-3 ). In cross-examination of both these witnesses there are number of material omissions and contradictions and they failed to assign any cogent and acceptable reason for the same. We do not feel it necessary to deal with each and every omission, contradictions and embellishment. In view of the fact that both the eye witnesses took turn in their cross-examination and instead of witnessing the incident, they narrated the story of extra judicial confession made by the appellants after reaching in front of their house. The testimony of Sardarbai (P. W. 10) also does not inspire confidence in view of her highly abnormal conduct being a real niece of the deceased Hiralal. She kept quiet for more than one and a half months and her statement was recorded by the police for the first time on 22-7-95 as indicated herein above. ( 8. ) IN view of the discussion of the evidential material relied upon by the learned Trial Court for convicting the appellants, we are of the opinion the Trial Court has committed error in placing reliance on the testimony of such kind of witnesses. The learned Trial Court also mentioned in Para 49 that even if P. W. 9, Sonibai and P. W. 10, Sardarbai cannot be regarded as eye witnesses of the incident, their version as witnesses of extra-judicial confession made by the appellants and this evidence has come in cross-examination, would be sufficient to bring home the guilt of the appellants. This reasoning of the Trial Court is not correct in the eye of law. This story of extra judicial confession has come for the first time in the Court. The eye witnesses have given go by to witnessing the incident in their cross-examination. ( 9. This reasoning of the Trial Court is not correct in the eye of law. This story of extra judicial confession has come for the first time in the Court. The eye witnesses have given go by to witnessing the incident in their cross-examination. ( 9. ) IN this view of the matter, we are unable to concur with the judgment and finding of the learned Trial Court convicting the appellants by the impugned judgment. Thus, this appeal of the appellants succeeds and is hereby allowed. The conviction and sentences of the appellants as passed by the Trial Court are hereby set aside. Appellant Nos. 1, 10 and 12 are on bail. Their bail and surety bonds shall stand discharged. The appellant Nos. 2 to 9 and 11 are in jail. The learned Trial Court is directed to release them forthwith if not required in any other criminal case. Let a copy of this judgment along with the record of the Trial Court be sent to that Court for immediate compliance.