JUDGMENT 1. - The brutal murder of a father, the testimony of two eyewitnesses, and theory of conspiracy have scripted these appeals before us. Vide judgment dated 9.3.04, the Additional District and Sessions Judge (Fast Track) No. 1, Jaipur City, Jaipur has convicted the different appellants for different offences and sentenced them as under : Appellant Offence under Sec. Sentence Hanuman Sahai 302/120-B IPC L.I., Rs. 1,000/- fine , Six Months S.I. in default Chhitar Mal 302/120-B IPC L.I., Rs. 1,000/- fine , Six Months S.I. in default Abdul Aziz 460 IPC 10 years R.I. Rs. 500/- fine , 3 months in default Mohd. Hanif 302/120-B IPC L.I., Rs. 1,000/- fine , six months S.I. in default Firoz @ Sherya 302/149 L.I., Rs. 1000/- fine , Six months S.I. 460 IPC 10 years R.I., Rs. 500/- fine , 3 months in default 148 IPC 3 years R.I., Rs. 200/- fine 1 month in default Durgadas @ Bhaya 302 IPC L.I., Rs. 1,000/- fine , six months in default Raju @ Raj Kumar 148 IPC 3 years , Rs. 200/- fine , one month in default 2. Since the appellants are aggrieved by the said judgment, they have filed six different appeals before us. Since these appeals arise out of the same impugned judgment, they are being decided by this common judgment. 3. According to the Prosecution, on 1-9-89 at 9:20 P.M., one Uttam Prakash lodged a written report at Police Station Ashok Nagar, Jaipur wherein he claimed that "he and his father, Ram Kishan Khandelwal left from their house, situated at A-10, Sikar House Area, for his uncle's house at C-10, Madan Kunj, Prithvi Raj Road, C-Scheme, Jaipur. At about 9:00 P.M. while his father was sitting on the bed, he and his aunt were talking to each other and his uncle was sitting in a chair in front of his father. Their servant, Arun Kumar was lying outside in the lawns. Suddenly, about ten to twelve persons entered the room and surrounded his father. These persons were armed with knives, swords, pick-axes etc. Some of them pointed knives at him, his aunt and his uncle and told them not to move. They were threatened that in case they were to raise a hue and cry, then they too would be eliminated. Iqbal, Hamid, Mahendra, Aziz, and Raju Naik stabbed his father and killed him. These persons were armed with knives, swords, pick-axes etc. Some of them pointed knives at him, his aunt and his uncle and told them not to move. They were threatened that in case they were to raise a hue and cry, then they too would be eliminated. Iqbal, Hamid, Mahendra, Aziz, and Raju Naik stabbed his father and killed him. When Arun entered the room, Hamid said,"We are finished with our job, you may go now." When his uncle, aunt and their children raised an alarm, Igbal, Hamid, Aziz, Mahendra Singh, Raju Naik and other eight to ten persons ran away while threatening them that they too would be killed. His father died in great agony. He has come to lodge the report. His father has been murdered at the instance of Hanuman, Chhitar, Hanif, Ramesh Shanker etc. because his father had lodged several reports in Police Station Shastri Nagar against them. He had also requested the police to protect his life and property against these persons, as he felt threatened by them. Pawan Kumar Bansal knew that his father had gone to C-Scheme today. He is also one of the associates of Hanuman, Chhitar etc. Earlier also they had made fatal assault on his father." 4. On the basis of the said report, a formal FIR, bearing FIR No.281/89 was registered for offence under Sections 147, 149, and 302 IPC and the investigation commenced. The Prosecution further alleged that during intervening night of 1/2.9.89 about 4:00 AM, the police arrested accused Igbal, Raji, Mahendra Singh, Abdul Aziz, Chhitar Mal and Hanuman from A-14, situated in Talkatora Colony. (There is some confusion in the mind of the Prosecution as to whose house it is. According to the Prosecution it is Hanuman's and Chhittar's house. But according to Hanuman's brother, Ramesh Chandra (D.W.1) it is his house). During the search of the said house, a "Bhagona' (Utensil) full of water and blood was also discovered. The police took samples from the said utensil. Further, on the basis of information given by Aziz, Mahendra Singh, Iqbal, Raju Naik, Durga Dass, Firoz weapons of offence and their blood soaked clothes were also recovered. The jeep, bearing Registration Number RST 1952, which was allegedly used by the culprit for fleeing the scene of the crime, was also seized. The police took samples from the said utensil. Further, on the basis of information given by Aziz, Mahendra Singh, Iqbal, Raju Naik, Durga Dass, Firoz weapons of offence and their blood soaked clothes were also recovered. The jeep, bearing Registration Number RST 1952, which was allegedly used by the culprit for fleeing the scene of the crime, was also seized. Subsequently, P.W. 25 Usman Ali-a Judicial Magistrate, conducted identification parades of Raju Naik, Mahendra Singh, Aziz, Durga Dass, and Firoz. After completion of investigation, the police submitted charge sheet against Iqbal, Abdul Aziz, Mahendra Singh, Raju Naik, Durga Dass, Firoz, Hanuman Sahai, Chhitar Mal, Saeed, and Mohammed Hanif. But it did not file any charge sheet against Hanuman's and Chhittar's brother, Ramesh Chandra, although some of the culprits were allegedly arrested from his house. 5. In order to prove its case, the Prosecution produced 31 witnesses and 74 documents. In order to prove its case, the Defence produced a single witness and a single document. After going through the oral and documentary evidence, the learned trial Court convicted and sentenced the accused appellants as mentioned above. But the learned Trial Court it acquitted Saeed of all the charges. It is pertinent to point out that Mahendra Singh and Iqbal had expired during the course of the trial. Hence the trial was dropped against them. 6. During the course of the trial, it was further revealed that Ram Kishan Khandelwal and his family used to live at A-10, Sikar House Area in Jaipur. Hanuman and Chhitar owned the adjacent house, A-11. Instead of having friendly relationship between Ram Kishan and Hanuman and Chhitar, actually there was animosity between them. When the latter two constructed a bathroom adjoining Ram Kishan's house, the Jaipur Development Authority demolished the same. The two brothers were under the impression that the bathroom was demolished because of Ram Kishan. Therefore, the animosity worsened. The animosity also saw the mushrooming of much litigation, both criminal and civil, between the parties. Allegedly, in order to further harass Ram Kishan and his family members, Hanuman and Chhitar sold their house to one Hanif Kabari. It was further stated that Hanif and his coterie, which included Aziz and some of the other culprits, started to harass Ram Kishan and his family members. Allegedly, in order to further harass Ram Kishan and his family members, Hanuman and Chhitar sold their house to one Hanif Kabari. It was further stated that Hanif and his coterie, which included Aziz and some of the other culprits, started to harass Ram Kishan and his family members. In fact, prior to his death, Ram Kishan had lodged information with Police Station Shastri Nagar, (Ex.P.8) wherein he had informed the police about his apprehension from these persons. But simultaneously, the Prosecution admits that Ram Kishan himself was a history-sheeter against whom many criminal cases were pending. Hence, he had no dearth of enemies. But, the Prosecution further alleged that Hanuman, Chhitar and Hanif entered into a criminal conspiracy for the murder of Ram Kishan; however, Iqbal, Aziz, Raju Naik, Mahendra Singh, Hamid, Durga Dass, any Firoz committed the actual murder. Hence, according to the Prosecution, the first set of persons entered a criminal conspiracy; but, the last set of persons committed the brutal murder. 7. Since there are different appeals on behalf of different appellants, it would be fruitful to take each appeal individually.1. HANUMAN SAHAI AND CHHITAR MAL: 8. Both these appellants have been charged for offence under Sections 302/120-B IPC. In order to convict these appellants, the learned trial court has relied upon the following evidence. Firstly, there was a grave animosity between the appellant and the deceased Ram Kishan Khandelwal. Secondly, just two months before his alleged murder, Ram Kishan had given information to the Police Station Shastri Nagar (Ex.P.8) that he apprehends danger to his life and property from Hanuman Sahai, Chhitar Mal and Hanif. Thirdly, that immediately after the alleged murder the appellants along with Igbal, Raju, Mahendra Singh, Abdul Aziz were arrested from Hanumam Sahai and Chhitar's house at A-14, Tal Katora in the early morning of 2.9.1989. from the said house the police recovered a utensil containing mixture of water and blood. Fifthly, that upon information of Iqbal, weapon of offence and blood soaked clothes were allegedly recovered from a Scooter from the said house. Thus, according to the learned trial court, these circumstances unerringly pointed to a conspiracy hatched by these two appellants along with Hanif and other culprits for the murder of Ram Kishan. 9. Mr. Fifthly, that upon information of Iqbal, weapon of offence and blood soaked clothes were allegedly recovered from a Scooter from the said house. Thus, according to the learned trial court, these circumstances unerringly pointed to a conspiracy hatched by these two appellants along with Hanif and other culprits for the murder of Ram Kishan. 9. Mr. Suresh Sahni, the learned counsel for the appellants, has argued firstly that the deceased Ram Kishan himself was' a history-sheeter who had made plenty of enemies. He has drawn attention to Ex.P.46 which is FIR lodged by one Ahsan against the deceased just a day prior to the murder of the deceased. Hence, instead of these two appellants, other persons could have easily plotted for the murder of the deceased. Hence, the criminal liability for his murder cannot be fastened on these two appellants. 10. Secondary, that according to the prosecution, Hanuman and Chhitar had sold A-11, which was the bone of contention between them and the deceased, to Hanif Kabadi. According to the learned counsel, once the house was sold to Hanif, there was no reason for any bad blood to exist between the appellants and the deceased. 11. Thirdly, the police have fabricated the evidence about the arrest of Hanuman and Chhittar from A-14, Tal Katora. While the prosecution claims that A-14 Tal Katora is a house owned by these two appellants, DW.1 Ramesh Chand, who is the brother of these two appellants, has claimed that the house belongs to him. The prosecution has not been able to demolish the testimony of Ramesh Chand, the defence witness, and has not been able to prove that the house actually belongs to these two appellants. He has further argued that in case the house does belong to Ramesh Chand, then it is surprising that Ramesh Chand has not been arrayed as co-accused in the case. He has further claimed that in the arrest memo of Hanuman (Ex.P.16) and in the arrest memo of Chhitar (Ex.P.20) the police has intentionally not mentioned the place of arrest. He has further urged that according to the Investigating Officer Sangram Singh ( PW.18), he was informed by Satyendra Singh ( PW.22), the SHO of P.S. Shastri Nagar, that the culprits are hiding at A-14, Tal Katora. It is only upon this information that he proceeded to A-14, Tal Katora and discovered the culprits hiding there and arrested them. He has further urged that according to the Investigating Officer Sangram Singh ( PW.18), he was informed by Satyendra Singh ( PW.22), the SHO of P.S. Shastri Nagar, that the culprits are hiding at A-14, Tal Katora. It is only upon this information that he proceeded to A-14, Tal Katora and discovered the culprits hiding there and arrested them. However, Satyendra Singh ( PW.22) is absolutely silent on this point. In his testimony, he nowhere claims that he had informed PW.18 Sangram Singh. He has further drawn our attention to Hanuman Sahai's statement under Section 313 Cr.P.C. that he was arrested at the Police Station and not at A.14, Tal Katora. Thus, according to the learned counsel, the learned trial court has mis-appreciated the evidence with regard to the ownership of the house and with regard to the place of arrest of Hanuman and Chhitar Mal. 12. Fourthly, according to him the discovery of utensil full of water and blood at A-14, Tal Katora, is an unnatural discovery. For, according to the prosecution, the weapons of offence and the blood soaked clothes belonging to the different culprits were discovered at different places. Yet, the prosecution would have us believe that after committing the murder, the culprits went to different place to hide the weapons and the blood soaked clothes and then proceeded to A-14, Tal Katora to wash their blood soaked hands. It is also unnatural that with the availability of running water tap in the house, the culprits would wash their hands in a utensil and would keep the utensil for the discovery of the police. He has further argued that even PW.11 Phool Chand, the Recovery witness, has not supported the prosecution case. For, in his cross examination he states that the place where the utensil was discovered was in the dark and the police had brought the utensil with them. Hence, according to him, the story of the discovery of utensil containing blood and water is a fabricated one by the police. 13. Lastly, although it is claimed by the prosecution that weapon and blood soaked clothes were recovered at the instance of Iqbal from a Scooter from the house allegedly owned by Hanuman and Chhitar, but the prosecution has not proved the fact of ownership of the house. Therefore, the recovery does not point to any conspiracy between the present appellants and the actual murderers. 14. Therefore, the recovery does not point to any conspiracy between the present appellants and the actual murderers. 14. On the other hand, the learned Public Prosecutor has supported the impugned judgment. 15. According to PW.18 Sangram Singh, the Investigating Officer, the deceased himself was a history-sheeter. This is also corroborated by the existence of Ex. P.46, the FIR lodged by Ahsan. Further, suggestions about the antecedents of the deceased were made to his son Uttam Prakash, PW.4. Therefore, he not only had animosity with the present appellants, but also with others in the city. Thus, unless clear and cogent evidence exists about the involvement of these two appellants, their criminal conspiracy cannot be presumed. In the case of (1) Badam Singh v. State of M.P. ( (2003) 12 SCC 792 ) , the Hon'ble Supreme Court while dealing with a murder of a .history-sheeter observed that "in view of the documentary evidence on record produced from proper custody, it cannot be disputed that deceased Bhabhara was a history sheeter who had many crimes to his credit, and had obviously many enemies who had motive to kill him. The question, however, is whether on the basis of evidence on record it is established that the appellant killed Bhaghara in the manner alleged by the prosecution". Later on, the Apex Court was pleased to conclude that, "the deceased had many enemies, and it appears to us that he may have been murdered by one of them but the appellant was falsely implicated." Similarly, in the present case, the possibility that others who had animosity with the deceased may have hatched a conspiracy to kill Ram Kishan cannot be ruled out. 16. There is certainly some confusion about the place from where Hanuman, Chhitar and some other culprits were arrested. According to the prosecution Hanuman, Chhitar, Raju, Mahendra Singh Abdul Aziz were all arrested around 2.00 AM in the intervening night of 1/2-9-89 from A-14 Tal Katora. According to Sangram Singh, (P.W.18), the Investigating Officer, he was informed by Satendra Singh (P.W.22), the SHO of Police Station Shashtri Nagar, that these culprits are hiding in A-14 Tal Katora. Yet, P.W. 22 is conspicuously silent on this point in his testimony. Therefore, it is unclear as to how the police came to know the whereabouts of these culprits immediately after the murder. 17. Yet, P.W. 22 is conspicuously silent on this point in his testimony. Therefore, it is unclear as to how the police came to know the whereabouts of these culprits immediately after the murder. 17. Secondly, the prosecution has miserably failed to prove that A-14, Tal Katora was owned by Hanuman and Chhitar, although it claimed so. There is no documentary proof of this allegation. On the Other hand, according to Ramesh Chandra (D.W.1), Hanuman's and Chhitar's brother, the house belongs to him. The Prosecution has not submitted any evidence to demolish his claim that he is the owner of the house. Even in the impugned judgment, the learned trial court is unsure as to the ownership of the house. At times, the learned trial court claims the house belongs to Hanuman and Chhitar; at other times, it claims the house belongs to Ramesh Chandra. In case, the house belongs to Ramesh Chandra, then it is surprising that he has not been made a co-accused in this case. After all, according to the Prosecution, he gave these culprits a haven there. In fact, he could be charged for offence under Section 216 IPC. Yet, the Prosecution has not taken any action against him. Hence, the Prosecution has not established the cardinal linking evidence about the ownership of the house. Hence, the allegation that Hanuman and Chhitar were the owner of the said house remains in the realm of conjecture and surmises. Since the Prosecution has failed to prove that these two appellants owned the house, therefore the learned trial Judge has erroneously concluded that immediately after the murder the culprits had gathered at their house. Therefore, such a conclusion is not based on any evidence. 18. Thirdly, in the Arrest Memo of Hanuman (Ex.P.16) there is a clear-cut interpolation about the place of arrest. This also throws doubt on the Prosecution claim about the place of arrest. 19. Fourthly, the Arrest Memos of Hanuman (Ex.P.16), of Chhitar (Ex.P.20), of Iqbal (Ex.P.18) of Abdul Aziz (Ex.P.15), of Manendra Singh (Ex.P.19), and of Raju Naik (Ex.P.17) do not reveal the place of arrest. According to the Rajasthan Police Rules the police in legally required to note the place of arrest. Yet, these Arrest Memos are conspicuously silent about the place of arrest. According to the Rajasthan Police Rules the police in legally required to note the place of arrest. Yet, these Arrest Memos are conspicuously silent about the place of arrest. On the other hand, Hanuman, Chhitar, Abdul Aziz, and Raju Naik,' in their statement under Section 313 Cr.P.C., have clearly denied being arrested from A-14 Tal Katora. Even P.W. 11, Phool Chand who is supposed to be a witness to the arrest to these culprits, does not tell us about the place of arrest. He merely states in his examination-in-chief that, "I have seen Exs. P.15 to 20. They contain my signature from 'A' to 'B'. These exhibits are the arrest memos of the culprits. Nothing incriminating was discovered, when these persons were searched but the police." In his cross-examination, he clearly admits that he neither remembers the faces of those who were arrested through these exhibits, nor does he remember the place of arrest. Surprisingly, the Prosecution claims that Phool Chand was a constable at that time and was a member of the police party, which raided house No. A-14 Tal Katora in order to arrest these culprits who were holed up there. Yet he doesn't remember the place of arrest. Hence, the place of arrest remains shrouded in mystery. Since it is unclear as to where these persons were arrested from, it is difficult to accept the Prosecution story that immediately after the alleged murder, these persons congregated at A-14 Tal Katora, a house alleged by the Prosecution to belong to Hanuman and Chhitar. Thus, their alleged arrest at the alleged place does not envelop Hanuman and Chhitar in a conspiracy. 20. Likewise, the Prosecution claims that a utensil was discovered at the place of arrest of these persons, namely A-14 Tal Katora, which contained a mixture of water and blood. Phool Chand (P.W.11), who is the Recovery Witness of the utensil, states in his cross-examination "the place where the utensil was found, it was dark in that place". He further states that the police had brought the utensil. Furthermore, it sounds quite implausible that the culprits would flee from the scene of the crime, go in different directions to hide their weapons of offence, and their blood stained clothes, and then re-assemble at A-14 Tal Katora. He further states that the police had brought the utensil. Furthermore, it sounds quite implausible that the culprits would flee from the scene of the crime, go in different directions to hide their weapons of offence, and their blood stained clothes, and then re-assemble at A-14 Tal Katora. Meanwhile, they would not clean their bloodstained hands, but would come all the way to this house to clean their hands in a utensil. They would also keep this utensil and the mixture intact. It is not a ceremony of a cult, which is being observed, but a murder of a man that has been committed. Thus, this recovery is of doubtful origin. 21. Similarly, the Prosecution alleged that according to information given by co-accused Iqbal, a knife and his blood stained clothes were recovered from a scooter from A-14 Tal Katora, a house which the prosecution claims to belonged to Hanuman. However, as stated above the ownership of the house was never categorically proven. Hence, the learned trial court has erroneously concluded that the alleged scooter and the knife and the bloodstained clothes were recovered from the house belonging to Hanuman and Chhitar. Hence, even this alleged recovery does not rope Hanuman and Chhitar into a conspiracy. 22. In conclusion, there is no cogent evidence to prove that Hanuman and Chhitar entered into a criminal conspiracy for the murder of Ram Kishan Khandelwal. Hence, their appeal is allowed and their conviction for offence under Section 302/120-B IPC is set aside. They shall be released forthwith if not wanted in any other case.2. Mohammad Hanif : 23. Mohammad Hanif was also charged and convicted for offence under Section 302/120-B IPC. The learned Trial Court has relied upon the following evidence to convict this appellant; firstly, according to the son of the deceased, Uttam Prakash (P.W.4), the adjacent house, A-11 Sikar House Area, was sold to Hanif by Hanuman and Chhitar. Shri Mool Chand (P.W.13) and Smt. Ratan Devi (P.W.20) both reiterate this claim. Secondly, Hanif used to come to A-11 along with Abdul Aziz and used to threaten not only the tenants who were occupying A-11, but also his father. In fact, just few days before the alleged murder, both Hanif and Aziz had threatened his father. Shri Mool Chand (P.W.13) and Smt. Ratan Devi (P.W.20) both reiterate this claim. Secondly, Hanif used to come to A-11 along with Abdul Aziz and used to threaten not only the tenants who were occupying A-11, but also his father. In fact, just few days before the alleged murder, both Hanif and Aziz had threatened his father. Thirdly, just one and a half month before his death, the deceased had sent information to Police Station Shastri Nagar (Ex.P.8) that he apprehended danger both to his life and his property from Hanuman, Chhitar and Hanif. Fourthly, that upon information given by co-accused Iqbal, knife and bloodstained clothes were recovered from a scooter belonging to Hanif. Hence, according to the learned trial Court not only was there a prior association between Hanif and the other co-accused, namely, Igbal and Aziz, but he had also lent his scooter to Iqbal in order to facilitate his fleeing from the scene of the crime and to permit him to hide his knife and bloodstained clothes in the scooter. These elements were sufficient to point to his involvement in the criminal conspiracy. 24. Mr. Nasir Ali Naqvi, the learned counsel for the appellant has contended that but for the testimony of P.W.4, P.W.13 and P.W.20, there is no evidence to prove that the house in dispute, A-11 Sikar House Area was ever sold to this appellant by Hanuman and Chhitar. In case of such sale, the Prosecution should have tendered some documentary proof about the sale. The Prosecution has failed to do so. Secondly, although Uttam Prakash claims that Hanif used to come and threaten his father and the tenants who used to live in House No. A-11, yet the Prosecution has not examined a single tenant from the building as an independent witness to prove the allegation of Hanif threatening them. Thirdly, there is no proof that the scooter from where a knife and bloodstained clothes were recovered upon information given by Iqbal actually belonged to Hanif. Neither the scooter has been produced, nor any documents have been produced to prove the ownership of the scooter. Hence, according to the learned counsel the appellant has been convicted on the basis of conjecture and surmises. 25. On the other hand, the learned Public Prosecutor has argued that all the circumstances enumerated by the learned trial Court do unerringly point to the guilt of the appellant. Hence, according to the learned counsel the appellant has been convicted on the basis of conjecture and surmises. 25. On the other hand, the learned Public Prosecutor has argued that all the circumstances enumerated by the learned trial Court do unerringly point to the guilt of the appellant. Therefore, the learned trial Court has rightly convicted him. 26. According to the Prosecution, the feud between the deceased and Hanif existed because Hanuman and Chhitar had sold their house, A-11, to him. This is a claim made consistently by P.W.4 Uttam Prakash, P.W.13 Mool Chand, and P.W.20 Smt. Ratan Devi. However, but for their claims, there is no other concrete evidence to prove the sale. There is neither any documentary evidence, nor any oral evidence of an independent witness to prove this fact. The Prosecution has not produced a single tenant from A-11 to prove the fact that the house in question has been sold by Hanuman and Chhitar to Hanif. Uttam Prakash (P.w.4) states in his cross examination "Since then (the date of the incident) till today tenants are living in the house of Chhitar and Hanuman....Present tenants are continuously living in it since last 10-11 years." Yet, these tenants are conspicuously missing from the witness box. In their absence and in the absence of any documentary proof, it cannot be concluded that Harluman and Chhitar had sold their house to Hanif. 27. Similarly, there is no evidence to prove that the scooter from where a knife and bloodstained clothes were recovered upon information supplied by Iqbal, a co-accused, actually belonged to Hanif. The Prosecution has not tendered the registration certificate of the said scooter as a piece of evidence. The Prosecution could have easily done so. In the absence of documentary proof, one cannot conclude ipso facto that the scooter belonged to Hanif. Therefore, it cannot be concluded with certainty that Hanif lent his scooter to Iqbal in order to facilitate his fleeing from the scene of the crime. Such a conclusion drawn by the learned trial Court is not based on any cogent evidence. 28. In the result Hanif's conviction is based on unsustainable evidence. Therefore, we allow the appeal and set aside his conviction under Section 302/120-B IPC. We direct his immediate release from jail, in case he is not wanted in any other case.3. ABDUL AZIZ : 29. 28. In the result Hanif's conviction is based on unsustainable evidence. Therefore, we allow the appeal and set aside his conviction under Section 302/120-B IPC. We direct his immediate release from jail, in case he is not wanted in any other case.3. ABDUL AZIZ : 29. This appellant was charged for offences under Sections 302, 120-B, 148, 149 and 460 IPC. The learned trial Court relied upon the following evidence to convict the appellant. Firstly, the appellant has been named in the FIR as one of the assailants who assaulted the deceased. Secondly, that both PW.4 Uttam Prakash and PW.20 Smt. Ratan Devi as eyewitnesses, have deposed against him. Thirdly, Smt. Ratan Devi had identified him in the identification parade (Ex.P.41). The said identification parade memo was proved by PW.25, Usam Ali, and the Judicial Magistrate who conducted the identification parade. Fourhtly, the appellant was arrested vide arrest memo (Ex.P.15) in the early hours of 2.9.1989 from the alleged house of Hanuman and Chhitar. Fifthly, upon information given by the appellant (Ex.P.20), the police recovered knife and blood stained clothes were recovered from his house. Sixthly, the FSL Report (Ex.P.71) clearly showed the presence of 'O' Group of human blood on the knife and the clothes, which was the blood group of the deceased. Hence, there is both direct and circumstantial evidence against the appellant. 30. Mr. S. R. Bajwa, Senior Advocate has challenged the credibility of both the eyewitnesses and has argued against the circumstantial evidence. According to him, both Uttam Prakash and Smt. Ratan Devi are interested witnesses as they are closely related to the deceased. Therefore, their testimony has to be scrutinised closely and corroboration on material points has to he examined. According to Mr. Bajwa, Uttam Prakash ( PW4) is an unreliable witness as there are gapping holes in his testimony. According to Uttam Prakash, he came to his uncle's house along with his father. However, according to the cross examination of P.W. 20 Smt. Ratan Devi, he came separately and reached his uncle's house half an hour earlier than the arrival of his father, Ram Kishan. Similarly, while Uttam Prakash claims that his father and one Narendra and he reached his uncle's place in a Jeep, Smt. Ratan Devi in her cross examination states that while Ram Kishan and Narendra came on a Jeep, Uttam Prakash came by Motorcycle. Similarly, while Uttam Prakash claims that his father and one Narendra and he reached his uncle's place in a Jeep, Smt. Ratan Devi in her cross examination states that while Ram Kishan and Narendra came on a Jeep, Uttam Prakash came by Motorcycle. Likewise, there is contradiction between Uttam Prakash and Mool Chand. While the former claims that he went to the Hospital with the dead body of his father, the latter claims that the body was taken by Mool Chand when Uttam Prakash had gone to the Police Station. Moreover, in case there was any animosity between Ram Kishan and the culprits, it is rather surprising that they left Uttam Prakash, the son of the deceased, unscathed. Furthermore, despite the fact that Uttam Prakash claims to be an eyewitness, he neither rushes to his father's rescue, nor picks him up after the assault, nor rushes him to the hospital. Instead, immediately after the attack, he rushes out of the room and allegedly, goes to the Police Station to lodge a report. His conduct as a son is highly unnatural, as any son would first try to rescue his father and would try to save him by having recourse to medical facilities. Thus, Uttam Prakash's conduct is highly unnatural. Father, Uttam Prakash has been disbelieved by the learned trial Court in the case of co-accused Hamid. Thus, his testimony is unreliable. 31. With regard to the testimony of PW.20, Smt. Ratan Devi, Mr. Bajwa claims that her statement under Section 161 Cr.P.C. was recorded on 3.9.1989, whereas the incident allegedly took place in the intervening night of 1/2.9.1989. The prosecution does not offer any explanation for the inordinate delay in recording her statement. Furthermore her testimony is replete with contradictions. On the one hand in her statement under Section 161 Cr.P.C. (Ex.D.1), she claimed that she did not know Aziz, yet in her testimony she claims that she knew Aziz prior to the incident. In fact, believing her statement in Ex.D.1, the police had asked her to identify Aziz in an identification parade. She had successfully identified him. In case she know Aziz prior to the incident, there was no need for the police to ask her to identify the appellant. Therefore, she is not telling the truth in the court. Furthermore, according to her testimony, the deceased was wearing Kurta and Pajama at the time of his death. She had successfully identified him. In case she know Aziz prior to the incident, there was no need for the police to ask her to identify the appellant. Therefore, she is not telling the truth in the court. Furthermore, according to her testimony, the deceased was wearing Kurta and Pajama at the time of his death. Yet, this is in variance with the evidence available on record. Such a glaring contradiction should convenience the court that she is not an eyewitness to the alleged incident. Like Uttam Prakash, even her conduct is highly unnatural. Although she claims that her children were at home when the alleged attack took place, yet she does not rush out of the room to protect her children. Instead, she remains in the room to witness a murder being committed. Hence according to the learned counsel, the witness is not of sterling worth. 32. Mr. Bajwa has further attacked the circumstantial evidence. According to Uttam Prakash, the room where the alleged assault took place, is a small one. The furniture occupies half the room. In such a small room it is impossible for ten to twelve people to enter and to assault the deceased. In case they were to congregate, then the eyewitness could not have seen the specific injuries caused by particular individuals. For, in a crowded room, it would be difficult to assign specific injuries to a particular person. Secondly allegedly there were four male persons in the house, namely Ram Kishan, the deceased, Narendra Singh who was sleeping in another room, Uttam Prakash, the son of the deceased and his uncle Jagdish Prasad. Surprisingly, none of the other three male members rush to or confront the assailants. Thirdly, although ten to twelve persons are alleged to have assaulted the deceased with knife, swords and pickaxe, the deceased has received only seven injuries. Thus, the few injuries do not commensurate wit the alleged large number of assailants. Fourthly, despite the numerous incised wounds, no blood was found on the bed-sheet of bed on which the deceased was sitting, nor on the walls of the room. Hence, a doubt is created if the alleged murder took place inside the room, or not. Moreover, there is no trail of blood from the room through the corridors to the outside of the house. Hence, a doubt is created if the alleged murder took place inside the room, or not. Moreover, there is no trail of blood from the room through the corridors to the outside of the house. In case, the assailants had assaulted the deceased, blood was bound to be smeared on their hands and clothes. Yet, there are no droplets of blood in the corridors. Hence, the place of assault is doubtful. Fifthly, the place where the FIR was registered is absolutely unclear. According to PW.4, he had lodged the FIR in the Police Station. He had brought the police to the scene of the crime. According to his testimony, the police had asked him to give his complaint in writing at the scene of the crime. In case, the FIR had already been lodged with the Police Station, there was no reason for the police to ask him to give the complaint in writing at the scene of the crime. PW.14 falsifies Uttam Prakash's claim with regard to the time of the FIR. Hence, the place and timing of the FIR is shrouded in enigma. 33. Mr. Bajwa has also attacked the prosecution story as far fetched. The prosecution would have us believed that after killing Ram Kishan, the assailants went to different places to hide their weapons and blood stained clothes and then reassembled at A-14, Tal Katora, at Ramesh Chand's house. According to the prosecution, Aziz hid his knife and his clothes at his house and then went back to Ramesh Chand's house to wash his hands, wherefrom he was arrested. The prosecution has produced neither the knife, nor the clothes, as allegedly recovered vide Ex.P. 29, Thus, not only the prosecution story is a fantastic one, but also the alleged recovery of the knife and the clothes do not connect the appellant to the alleged murder. 34. The prosecution has also withheld a material witness from the court. According to the prosecution, Jagdish Prasad, the deceased's brother, was very much present in the room as he was sitting and talking to the deceased when the assault was made. Yet, Jagdish Prasad is conspicuously absent from the witness box. His withholding by the prosecution should be read adversely against the prosecution 35. We have given thoughtful consideration to the numerous contentions raised by the learned counsel. 36. Yet, Jagdish Prasad is conspicuously absent from the witness box. His withholding by the prosecution should be read adversely against the prosecution 35. We have given thoughtful consideration to the numerous contentions raised by the learned counsel. 36. Minor discrepancies and contradictions do not demolish the case of the prosecution. According to the Hon'ble Supreme Court, one should consider the broad outlines of the prosecution case and in case the witnesses appear to be truthful, then their evidence should be read against the accused persons. There is a discrepancy between Uttam Prakash's statement that he accompanied his father to his uncle's house and the statement of PW.20 Smt. Ratan Devi that Uttam Prakash had arrived at her house half an hour prior to Ram Kishan's arrival. But, the fact remains that both the witnesses do claim themselves to be present in the room when the murder took place. Therefore, it is immaterial whether Uttam Prakash accompanied his father or arrived before his father at the scene of the crime. 37. Similarly, it is immaterial whether Uttam Prakash accompanied his deceased father to the hospital, or whether Mool Chand, PW.13, took the body. For the purpose of conviction, we have to consider the act of killing that took place inside the room. Both, Uttam Prakash and Smt. Ratan Devi categorically state that 10-20 people, including the present appellant, entered into the room. These persons were carrying knives, swords and pickaxe. While three persons held the witnesses at knife point, other assaulted the deceased. Both the witnesses categorically state that Aziz inflicted a knife blow on the right side of the neck of the deceased. Of course, according to the Post Mortem Report (Ex.P.56), there is no injury on the neck. However, according to PW.29 Dr. P.C. Vyas, there is an incised wound 2 cm. X 1/2 cm. into muscle deep on the right side of the Clavicle. Considering the fact that deceased was suddenly attacked by a large number of people, the witnesses might have thought that Aziz struck him on the neck. The injury on the clavicle being close enough to the neck corroborates the testimony of eyewitnesses that Aziz struck the deceased with a knife on the right side of the neck. Thus, there is no contradiction between the ocular and medical evidence. In fact, the latter substantiates the former. 38. The injury on the clavicle being close enough to the neck corroborates the testimony of eyewitnesses that Aziz struck the deceased with a knife on the right side of the neck. Thus, there is no contradiction between the ocular and medical evidence. In fact, the latter substantiates the former. 38. It hardly makes any difference whether Smt. Ratan Devi knew Aziz prior to the murder. The fact remains that she had identified him in the identification parade (Ex.P.41) and in the court. PW.4 Uttam Prakash also tells us that Aziz was a resident of the neighborhood and was a close associate of Hanif, with whom his father had animosity. Uttam Prakash already knew Aziz. Therefore, both the witnesses testify to the presence of the appellant and to the specific overt act committed by him in causing Ram Kishan's death. 39. Since there are two trustworthy eyewitnesses, no fruitful purpose would have been served had the prosecution examined Jagdish Prasad as a witness. After all, being an eyewitness, he too would have narrated the same set of fact as narrated by the other two eyewitnesses. Hence, his testimony would have been redundant. It is, indeed, a settled principle of criminal law that it is not the quantity of witnesses, but the quality of witnesses, which determine the fate of a case. As the prosecution had already produced two witnesses of sterling worth, by repeating the same evidence through a third eyewitness, they would not be augmenting their case. Hence, the withholding of Jagdish Prasad from the witness box is not fatal to the prosecution. 40. Since there is explicit direct evidence available on record, the circumstantial evidence, i.e. the recovery of knife and blood stained clothes pale into insignificance. The prosecution has explained the reason for non-production of knife and the blood stained clothes in the court. According to the prosecution, after these articles were received by the police from the FSL, they have disappeared from the Police Malkhana. A departmental inquiry has already been started against those persons who were allegedly involved in disposing of the aforesaid articles. Therefore, the prosecution has not intentionally withheld these articles from the court, but in fact, is unable to produce them for circumstances beyond its control. Hence, the non-production of these articles cannot be read against the prosecution. A departmental inquiry has already been started against those persons who were allegedly involved in disposing of the aforesaid articles. Therefore, the prosecution has not intentionally withheld these articles from the court, but in fact, is unable to produce them for circumstances beyond its control. Hence, the non-production of these articles cannot be read against the prosecution. Even an adverse inference cannot be drawn against the prosecution under Section 114 of the Evidence Act. For, they cannot produce what is not within their possession. 41. According to the FSL Report, the blood group of the deceased is 'O' Blood Group. The same blood group has been found on the clothes recovered at the instance of the appellant. Hence, there is linking evidence which points to the involvement of the appellant in the murder of the deceased. Thus, the circumstantial evidence corroborates the testimony of the eyewitnesses. 42. Hence, in our opinion, the prosecution has proved the case against the appellant beyond a reasonable doubt. Therefore, we uphold the conviction of the appellant and dismiss the appeal filed by the appellant. 43. However, instead of convicting him for offence under Section 302 IPC, it seems inadvertently,the learned trial court has convicted and sentenced the appellant only for offence under Section 460 IPC. Considering the glaring evidence against the appellant, we convict him for offence under Section 302/149 IPC also and sentence him to Life Imprisonment and impose a fine of Rs. 1,000/- and to further undergo Rigorous Imprisonment of three months in default thereof.RAJU NAIK : 44. Like Aziz, Raju Naik was also charged for offence under Sections 302, 120-B, 148, 149 and 460 IPC. In order to convict him, the learned trial court had relied on the following evidence : 45. Firstly, he was named in the FIR, which was immediately lodged after the murder. Secondly, both Uttam Prakash ( PW.4) and Smt. Ratan Devi ( PW.20), categorically state that he stabbed the deceased with a knife on the chest. Thirdly, the post-mortem report clearly reveals an injury on the chest. Dr. P.C. Vyas ( PW.29) proves the post-mortem report and the injury on the chest. Fourthly, the appellant was also arrested along with other culprits at A-14, Tal Katora in the early hours of 2.9.1989. Fifthly, upon his information, a knife and blood stained clothes were recovered from his house vide Ex.P.32. PW.21 Bajrang Singh proved the said exhibit. Dr. P.C. Vyas ( PW.29) proves the post-mortem report and the injury on the chest. Fourthly, the appellant was also arrested along with other culprits at A-14, Tal Katora in the early hours of 2.9.1989. Fifthly, upon his information, a knife and blood stained clothes were recovered from his house vide Ex.P.32. PW.21 Bajrang Singh proved the said exhibit. Sixthtly, the knife and the clothes have human blood. According to the learned trial Court, thus there was sufficient evidence to convict the appellant. 46. Mr. Sanjay Tyagi, learned counsel.for the appellant, has basically adopted the contentions raised by Mr. Bajwa Senior Advocate. Hence, the contentions need not to be repeated here. 47. Both the eyewitnesses Uttam Prakash and Smt. Ratan Devi categorically state that the appellant had struck the deceased with a knife on his chest. According to PW.29, Dr. P.C. Vyas, there are two injuries on the chest "Injury No. 4 is an incised would, 3 cm. x 2 cm. x chest cavity deep with dark clouted blood, present on right side front of chest, upper part, 4 cm. above and medial to right nipple. On further dissection, the wound is cutting the muscles obliquely in right second intercostals space and piercing the pleura and cutting the lower portion of right upper lobe of lung superiorly of size 1.5 cm x 1/2cm x 1 cm. with right side heamothorax about 700 CC blood." Likewise, injury No. 5 is "an incised wound 2 cm. x 1/4 cm. x chest cavity deep with dark clouted blood over mid sternal region of chest. On further exploration, the wound is cutting the sternum and reaching upto right ventricle through cutting pericardium. There is cut wound of size 1 cm x 1/4 cm. x right ventricle deep with haemopericardium about 100 CC. Partially clouted blood seen in left side chest cavity." The existence of these two wounds obviously corroborates the testimony of the eyewitnesses that the appellant had struck with a knife on the chest of the deceased. In fact, the cause of death, as given in the post-mortem report (Ex.P.56) is "syncope as a result of injury to heart with cumulative effect of other injuries, as mentioned, which are sufficient collectively to cause death in ordinary course of nature. Injury No. 5 individually is sufficient to cause death in ordinary course of nature. In fact, the cause of death, as given in the post-mortem report (Ex.P.56) is "syncope as a result of injury to heart with cumulative effect of other injuries, as mentioned, which are sufficient collectively to cause death in ordinary course of nature. Injury No. 5 individually is sufficient to cause death in ordinary course of nature. All injuries are ante-mortem in nature." Although, Smt. Ratan Devi could not identify the present appellant in the identification parade, but she has identified him in the court. What is material is that both the eyewitnesses have testified to the presence of the appellant in the room, specifically assigned an injury to him by a weapon recovered at his instance and the injury assigned to him is corroborated by the Post Mortem Report. Hence, there is sufficient evidence to uphold his conviction. 48. In the result, we uphold the conviction of Raju Naik and dismiss the appeal filed by him. In case he is on bail, his bail bonds shall be forfeited and he shall be taken into custody to serve out the sentence, awarded by the learned trial court.Durga Dass : 49. -Likewise, Durga Dass was charged for offences under Sections 148, 149, 302, 460 IPC. The learned trial court has relied upon the following evidence to convict him : 50. Firstly, that according to PW.4, Uttam Prakash, 8-10 persons had assaulted and killed his father. Although he had named only five persons in the FIR , however, he had claimed that he can recognise the others when they are brought before him. Uttam Prakash had recognised the appellant Durag Dass in the court. During the course of investigation, PW.20 Smt. Ratan Devi, had identified Durga Dass in identification parade (Ex.P.42). The said identification was proved by PW.25, Usam Ali, the. Judicial Magistrate. Secondly, after his arrest and upon information given by the appellant, the police had recovered blood stained clothes and one knife from a wooden box lying in a cycle stand situated at the Railway Station, contract of which was with Durga Dass's brother. Thirdly, according to FSL Report (Ex.P.72), 'O' Blood Group, the blood group of the deceased, was discovered on the knife and the clothes, so recovered. Thus, according to the learned trial Court, there is both direct and circumstantial evidence against the appellant Durga Dass. 51. Thirdly, according to FSL Report (Ex.P.72), 'O' Blood Group, the blood group of the deceased, was discovered on the knife and the clothes, so recovered. Thus, according to the learned trial Court, there is both direct and circumstantial evidence against the appellant Durga Dass. 51. Learned counsel for the appellant has argued that Durga Dass has not been named in the FIR as a assailant. That the appellant was arrested 11 days after the incident and the identification parade was held 17 days thereafter. The inordinate delay in holding the identification parade casts a doubt on the validity of the identification parade. PW.20 Smt. Ratan Devi had quite a difficulty in identifying the appellant, a fact noted in the identification parade memo (Ex.P40). Even the identification by PW.4 Uttam Prakash is no identification. As in catena of case, the. Hon'ble Supreme Court has held that the first identification in the court is no identification in the eyes of law. Furthermore, that the recovery has not been supported by PW.15 Kanhaiya Lal, who is an independent witness of the recovery. He not only denies the recovery before him but has also been declared as hostile witness. Lastly, that according to Ex.P.72, the FSL Report, while human blood was discovered on the shirt, recovered from the appellant, no blood could be detected on the knife and on the pent, recovered from the appellant. The mere presence of human blood on the shirt does not connect the appellant to the alleged crime. For, the prosecution has not eliminated the possibility that the human blood could be that of the appellant himself. 52. On the other hand, the learned Public Prosecutor Mr. Goyal has supported the impugned judgment. 53. We have heard both the learned counsels and perused the record. 54. Although the complainant Uttam Prakash has not named Durga Dass in the FIR, but he does claim that he can recognise when the accused is brought before him. For the first time he recognizes the appellant during the course of the trial in the court. More importantly PW.20 Ratan Devi has recognised him in the identification parade (Ex.P.40). The said identification parade has been proved by Usman Ali, PW.25. In his examination-in-chief, he clearly states that Mubarak Ali, ( PW.2), Attayer Rasool ( PW.3) and Ratan Devi ( PW.20) had recognised the appellant Durga Dass. More importantly PW.20 Ratan Devi has recognised him in the identification parade (Ex.P.40). The said identification parade has been proved by Usman Ali, PW.25. In his examination-in-chief, he clearly states that Mubarak Ali, ( PW.2), Attayer Rasool ( PW.3) and Ratan Devi ( PW.20) had recognised the appellant Durga Dass. During his cross examination, the testimony of the said witness could not be shaken by the counsel for the appellant Durga Dass. Hence, there is no reason to doubt that indeed Ratan Devi had identified Durga Dass in the test identification parade. Further, PW.20 Ratan Devi clearly refutes the suggestion that Durga Dass was shown to her while he was kept in custody. Hence, undoubtedly the appellant has been recognised by her. 55. It seems that the learned trial Judge has misread Ex.P.72, the FSL Report, with regard to the knife and the shirt and the pent recovered at the instance of the appellant. According to the said report, the knife was received in parcel No. 'M' (Ex.21), the shirt was received in parcel No. 'N' (Ex.22) and the pent was also received in parcel No. 'N' (Ex.23). According to the test result, no blood was detected on the pent. Similarly, no blood could be detected on the knife as the blood has disintegrated. Only human blood was detected on the shirt (Ex.22, parcel No. 'N'). Thus, the learned trial court has erroneously observed that according to the Ex.P.72, 'O' Group of human blood, the blood group of the deceased, was discovered on the knife and clothes recovered at the instance of the appellant. Hence, it has mis-appreciated the circumstantial evidence against the appellant. 56. Since both PW.4, Uttam Prakash and PW.20, Ratan Devi are related witnesses, therefore, they are interested witnesses. In order to appreciate their testimony, one has to find corroboration from circumstantial evidence. However, in the present case, there is no corroboration from the circumstantial evidence. Although the eye-witnesses claim that Durga Dass was one of the assailants, although they have identified him, but the fact remains that no blood was found on the pant worn by the appellant and on the knife used by him. Although human blood was found on his shirt, the prosecution has not eliminated the possibility that blood could belong to the accused. In absence of such an elimination, one cannot presume that the human blood, so discovered, belongs to the deceased. Although human blood was found on his shirt, the prosecution has not eliminated the possibility that blood could belong to the accused. In absence of such an elimination, one cannot presume that the human blood, so discovered, belongs to the deceased. Furthermore, the said recovery has been belied by the recovery witness PW.15, Kanhaiya Lal. Therefore, no matter how strong the suspicion that Durga Dass might be one of the assailants, but the suspicion cannot take the place of proof. Since the testimony of the eye-witnesses does not find corroboration at material particulars, the benefit of doubt should be given to the appellant. 57. In the result, the appeal of Durga Dass is accepted and he is acquitted of offence under Sections 302, 148, 149, 460 IPC.Firoz : 58. Firoz's case is very similar to that of Durga Dass. Like Durga Dass, he is not named in the FIR. But, according to Uttam Prakash, he is one of those assailants whom he could identify, but whose name he does not know. Uttam Prakash has identified him for the first time in the court. It is PW.20, Smt. Ratan Devi who identified him during the test identification parade. Like Durga Dass, no human blood was found on the knife and clothes recovered at the instance of the accused. Still the learned trial court convicted him cetensibly on the ground that Smt. Ratan Devi had identified him, Uttam Prakash has identified him and there is no reason for disbelieving their testimony. 59. As stated above, the testimony of the eye-witnesses, who are interested witnesses, has to be corroborated by circumstantial evidence. However, as in Durga Dass's case, even in the case of the present appellant there is no corroboration from circumstantial evidence. The knife and the blood stained clothes, allegedly recovered at the instance of the appellant, do not reveal any human blood upon them. For the first time the appellant is identified in the court by Uttam Prakash. But, identification in the court for the first time is no identification in the eyes of the law. Hence, the benefit of doubt should equally be given to Firoz and he should be acquitted. 60. Therefore, in the result, we accept the appeal filed by Firoz and acquit him of charges for offences under Sections 302, 460, 148, 149 IPC. 61. Hence, the benefit of doubt should equally be given to Firoz and he should be acquitted. 60. Therefore, in the result, we accept the appeal filed by Firoz and acquit him of charges for offences under Sections 302, 460, 148, 149 IPC. 61. The end result of all the appeals is that the appeals filed by Hanuman and Chittar, Hanif, Durga Dass, Firoz are accepted and it is directed that they should be released forthwith, if not wanted in any other case. However, the appeals filed by the Abdul Aziz, Raju Naik are dismissed and their conviction vide judgment dated 9.3.2004 is confirmed.Appeals Disposed of. *******