JUDGMENT 1. - This appeal under Section 374 of Code of Criminal Procedure (herein after 'the Code') is directed against the judgment and order dated 7.9.2006 rendered in Sessions Case No. 82/2005 by the Additional Sessions Judge (Fast Track) No. 2, Bikaner whereby he convicted appellant No. 1-Ganga Ram S/o Lichu Ram for offence under Section 302 I.P.C. and appellant No. 2- Prahlad S/o Ganga Ram for offence under Section 302/34 I.P.C. Both of them have been sentenced to imprisonment for life and fine of Rs. 1,000/- each and in default of payment whereof to further undergo additional imprisonment for one month. 2. The facts leading to this appeal are that PW-1-Haji Khan submitted a written report (Ex.P-1) on 18.7.2005 at about 12.50 'P.M. at Police Station, Gangashahar wherein, inter alia, he narrated that Mushtaq was his real brother, who was residing near to his house. On the day of incident, at about 7 0' clock he was at his hotel at Nokha road when his brother Kalu Khan came and told to him that Mushtaq is lying in his house in unconscious condition. He, therefore, went to the house of Mushtaq and saw that blood was coming out of his mouth and he was unconscious. He then enquired from wife of Mushtaq, namely-Nazira, his 'mausi' (aunt) Rehmat and his son Kalu; who told that yesterday, on 17.7.2005, at about 9 0' clock Mushtaq went on his motorcycle for recovery of money and at about 10.45 in the night Ganga Ram S/o Lichu Ram (accused No. 1-hereinafter Al) and his son Prahlad (accused No. 1-hereinafter A2) came along with Mushtaq, left him at his house in unconscious condition and went away. After some time, Narayan Singh (PW-2) also came and left Mushtaq's motorcycle. The family members thought that Mushtaq might have consumed some drug but till today in the morning when he did not wake up then he (Haji Khan) was called. 3. Then they called Narayan Singh, who told that in yesterday night, he along with Mushtaq, both had gone for recovery of money. At about 10.15 in the night when they reached near to house of Poorna Ram, Ganga Ram (Al) and his son Prahlad Ram (A2) met them. Mushtaq demanded money from Ganga Ram and both of them quarreled with each other. Then Ganga Ram inflicted a 'danda' (stick) blow whereupon Mushtaq fell down. At about 10.15 in the night when they reached near to house of Poorna Ram, Ganga Ram (Al) and his son Prahlad Ram (A2) met them. Mushtaq demanded money from Ganga Ram and both of them quarreled with each other. Then Ganga Ram inflicted a 'danda' (stick) blow whereupon Mushtaq fell down. The 'danda' has also broken. Thereafter, Ganga Ram (Al) and Prahlad Ram (A2) both brought Mushtaq to his house. Narayan Singh also left the motorcycle at the house of Mushtaq. 4. PW-1 Haji Khan thereafter carried Mushtaq to hospital where Doctor declared him dead. As per further narration in the F.I.R., Ganga Ram (Al) and Prahlad Ram (A2) inflicted 'danda' injury to his brother and killed him. 5. Upon this report, a case was registered against both the accused persons for offence under Section 302/34 I.P.C. and investigation was commenced. After investigation, both the accused were challaned and the Additional Chief Judicial Magistrate No. 4, Bikaner committed the case to the Court of Sessions, Bikaner. 6. The Additional Sessions Judge (Fast Track) No. 2, Bikaner (hereinafter 'the trial Court'), to whom the case was made over for trial; framed charges against the accused, to which they pleaded not guilty and therefore, they were took to trial. 7. In order to bring home the charge against accused, the prosecution examined in all 8 witnesses and relied on their oral testimony. The prosecution also produced number of documents and relied on contents of the same. 8. The trial Court thereafter recorded statements of accused under Section 313 of the Code, wherein also they denied the prosecution allegation in toto and reiterated that a false case has been filed against them. In support of the defence, they also examined two witnesses. 9. On appreciation, analysis and scrutiny of the evidence on record, the trial Court held that the prosecution has successfully established homicidal death of deceased Mushtaq. On the basis of evidence of eye-witness and the recovery of weapon upon information supplied by accused No. 1 (Gangs Ram), the trial Court held that the commission of offence by the accused has been duly proved. The trial Court, therefore, convicted both the accused and sentenced them, to which reference has been made in foregoing paragraphs; giving rise to present appeal at the instance of both the accused. 10. Mr. The trial Court, therefore, convicted both the accused and sentenced them, to which reference has been made in foregoing paragraphs; giving rise to present appeal at the instance of both the accused. 10. Mr. M.K. Garg, learned counsel for the appellants, submitted that the F.I.R. has been lodged after 14 hours of the incident and this delay has not been explained by the prosecution. Important witnesses have not been examined and the trial Court made conviction on the basis of evidence of solitary eye-witness Narayan Singh (PW-2), who improved his versions before the Court, which were not stated at the time of recording statement before the Investigation Officer. Further, PW-1 Haji Khan, who is brother of the deceased, is not an eye-witness and who lodged the F.I.R. on receiving the information supplied by Narayan Singh, who is not reliable and therefore, no reliance can be placed on the evidence of PW-1 Haji Khan also. On the aforesaid premise, according to him, there is no evidence of commission of the offence by the accused-appellants and only evidence is of Narayan Singh (PW-2), which is not reliable and therefore, the conviction and sentence recorded against both the accused suffers from mis- appreciation of the evidence produced by the prosecution and therefore, the judgment and order of conviction and sentence against accused-appellants deserves to be quashed and set aside, by allowing the appeal and acquitting the accused of the offence with which they were charged. 11. Per contra, learned Public Prosecutor Mr. K.R. Bishnoi has supported the judgment impugned. 12. We have considered the submissions made by Mr. Garg, learned counsel appearing for the accused-appellants as also by learned Public Prosecutor. We have also perused impugned judgment and order and re- appreciated the evidence. 13. So far as homicidal death of deceased Mushtaq is concerned, there is no dispute in view of evidence of PW-3 Dr. Rahul Jain, who has conducted postmortem. On perusal of evidence of PW-3 Dr. Rahul Jain and postmortem report Ex.P-7, the following injuries were seen on body of the deceased: (i) swelling seen on left parieto-temporal region and just above and behind left ear pinna; (ii) contusion left arm 10 x 2 cms anteromedial region; (iii) contusion left elbow 2 x 1 cms left cubital fossa. 14. On perusal of evidence of PW-3 Dr. Rahul Jain and postmortem report Ex.P-7, the following injuries were seen on body of the deceased: (i) swelling seen on left parieto-temporal region and just above and behind left ear pinna; (ii) contusion left arm 10 x 2 cms anteromedial region; (iii) contusion left elbow 2 x 1 cms left cubital fossa. 14. We have noticed that the cause of death was due to coma, due to ante-mortem head injury; therefore, deceased died a homicidal death. 15. Next question, which calls for determination, is whether the accused- appellants are author of the injuries caused to deceased? In this connection, first of all, we shall refer to evidence of PW-1 Haji Khan, who has lodged the F.I.R. (Ex.P-2). He has, inter alia, stated that Nazira, wife of Mushtaq, Kalu Khan and Rehmat told him that it was about 11/11.30 in the night when they were standing in the house then Ganga Ram and his son Prahlad dropped Mushtaq inside the house. All three saw them leaving after dropping Mushtaq and just thereafter, Narayan Singh came, who brought the motorcycle and went to his home after standing the motorcycle outside the house. They lifted Mushtaq and lay him on a cot. They thought he might have taken some drug and so let him asleep. Nazira told that then she went to sleep on roof with children and Rehmat and Kalu went to their home. Nazira further told that when she woke up at about 6 O'clock in the morning and looked up Mushtaq, his condition was quite bad and then she sent Kalu Khan to call him (Haji Khan). 16. PW-1 Haji Khan also stated that Narayan Singh told that-Ganga Ram and Prahlad lifted Mushtaq and went towards his (Mushtaq's) house. Ganga Ram and Prahlad were leading ahead and behind them, Narayan Singh carried the motorcycle on feet, as Narayan Singh does not know to ride motorcycle. Narayan Singh went to his hosue after standing the motorcycle outside the house of Mushtaq. 17. Ganga Ram and Prahlad were leading ahead and behind them, Narayan Singh carried the motorcycle on feet, as Narayan Singh does not know to ride motorcycle. Narayan Singh went to his hosue after standing the motorcycle outside the house of Mushtaq. 17. On reappraisal of his evidence and on comparable analysis of the F.I.R. (Ex.P-2), it is seen that this witness has given a total go-bye to the statement made in the complaint and before the Court, he has improved his versions on every point in toto, which he has not stated in the F.I.R. It is also suprising to note that when accused brought deceased Mushtaq, he never inquired from them why they have brought Mushtaq in unconscious condition. This shows an unnatural conduct. This witness also stated in his report (Ex.P-1) that Narayan Singh came on motorcycle whereas as per his narration before the Court, he stated that Narayan Singh does not know to ride the motorcycle. Therefore, this witness is not reliable and trustworthy. No reliance can be placed on his complaint as well as oral testimony, to connect the accused appellants with the alleged crime. 18. Now the next important witness is PW-2 Narayan Singh, who is projected as an eye-witness. He has, inter alia, stated that-he knew deceased Mushtaq, his camel cart used to go on contract basis on 27.07. He doesn't remember the year, then said it happened on 17th. Six months ago in night at 10 O'clock they entered in Regar's street before that he and Mushtaq had gone to take their money in the evening on motorcycle. First they went to house of Mahendra Singh Thanedar then they were went to house of Harchand Brahmin, then to Chotan Master's house and then at about 10 in the night they reached Regar's street. When they reached near Puma Ram Regar's house, there they found Ganga Ram and Prahlad. Then Mushtaq stopped the cart and asked them to give money. Soon they started quarreling as to why should they give money then they started giving fished blows. By then, they had reached near Bhera Ram's compound. Prahlad caught hold Mushtaq and Ganga Ram inflicted 'danda' blow on head of Mushtaq. Danda broke down and Mushtaq fell down on the ground, then Prahlad gave fist blows. Mushtaq got unconscious, then they picked up Mushtaq and took him towards his house. By then, they had reached near Bhera Ram's compound. Prahlad caught hold Mushtaq and Ganga Ram inflicted 'danda' blow on head of Mushtaq. Danda broke down and Mushtaq fell down on the ground, then Prahlad gave fist blows. Mushtaq got unconscious, then they picked up Mushtaq and took him towards his house. After some time, he (PW-2) took the motorcycle and headed towards Mushtaq's house on feet and left the motorcycle there. He didn't know how to drive the motorcycle. He saw Ganga Ram and Prahlad who had dropped Mushtaq in his house, before he reached. He found them both in front of Mushtaq's house only. He left the motorcycle and went of to his house. At Mushtaq's house, Mushtaq's wife, Kalu and Kalu's mother were talking. He knew both the accused who were present in the Court, both were from his village. Police came in the morning and prepared site plan, which is Ex.P-6 where his thumb impression is marked as X. 18.1 In the cross-examination, he stated that-for past 2-3 years, he used to drive cart according to Mushtaq's contract basis. He had good relations with Mushtaq. When they went to take out money, after about 15-20 minutes they reached house of Mahendra Singh Thanedar. Thanedar was not present, his wife was there, she gave some money to Mushtaq, he didn't know how much the money was, as he was standing outside. Then they went to Harchand Brahmin's house. They met Harchand Brahmin, who gave Rs. 1,000/- to Mushtaq, which were for bricks and Patti, Mushtaq noted the amount in his diary. This transaction took about one hour. Then they went to Chotu Master's house and there they took i hour. By then it was already 9.30, they had reached Puma Ram's street by 10. The police took his statement. This fact was not mentioned in his police statement Ex.D-2 that firstly they went to house of Mahendra Thanedar then to Harchand Brahmin's house and then Chotu Master's house. He didn't know why this fact has not been mentioned though he had stated it. In his police statement Ex.D-2, in the portion marked 'A' to 'B', the time stated to be 10, which was written approximately. There was no one in the street except them. Street-light was there. The road light was near Bhera Ram Regar's compound, near Puma Ram Regar's house. In his police statement Ex.D-2, in the portion marked 'A' to 'B', the time stated to be 10, which was written approximately. There was no one in the street except them. Street-light was there. The road light was near Bhera Ram Regar's compound, near Puma Ram Regar's house. They had went west side in the street and then approached Puma Ram's house. After that Bhera Ram's compound came. 18.2 It is further testified by him that they had found Ganga Ram and Prahlad near Puma Ram's house only. This would be wrong to state that they drank liquor there. Mushtaq stepped down from his bike and asked for the money, how much money was asked he didn't know. The quarrel took place near Bhera Ram's compound. In the site plan, he only knew Puma Ram's house and Bhera Ram's compound. In that street there are houses of others also, this he didn't know. Bhera Ram's compound's gate was in southern side. Near his compound there was street light. He didn't know whether there was moon-light or complete darkness. He stood for 2-3 minutes at the site. The quarrel continued for 2-3 minutes. After that he left from the site. He went from Bhera Ram's compound towards eastern direction and reached Mushtaq's house in about 4-5 minutes. Before he reached, Ganga Ram and Prahlad left Mushtaq in his house. He didn't see Mushtaq whether he was lying on the cot or on the floor, he didn't go inside the house where ladies were standing, neither did he talk to the ladies, nor did he tell them anything. 8.3 He further deposed that next morning also, he didn't go there and didn't narrate the incident to anybody. He was called by Haji Khan in the morning at 7.30. He was called by Babu Khan. This would be wrong to state that Mushtaq used to drink liquor, he knew Mushtaq's wife, who used to put her veil before me. He knew Kalu Khan. He told Haji Khan in the morning that Prahlad gave fist blows to Mushtaq and that the 'danda' was about 2 feet long and it was made of 'safeda wood'. He knew Nazira, who was Mushtaq's wife. The motorcycle was black in colour. He didn't know its company. He didn't know how to drive the motorcycle so he had to drag the motorcycle on feet till Mushtaq's house. He knew Nazira, who was Mushtaq's wife. The motorcycle was black in colour. He didn't know its company. He didn't know how to drive the motorcycle so he had to drag the motorcycle on feet till Mushtaq's house. 18.4 It is also stated by him that on date 18, when Police came he also reached at the site. He had told the police about electric pole in street, he also told them that they had gone from the west side and towards the east side. He is alone in his house and had no one else in the house. He didn't tell to any of the villagers about the incident in the night because he was frightened. The ladies present at Mushtaq's house didn't ask him as to how Mushtaq became unconscious, since he didn't see him when he parked the motorcycle. This would be wrong to state that Mushtaq used to drink liquor. This is also wrong to state that they both were drunk that day and that they both fell down from the motorcycle. Mushtaq didn't had bleeding. Mushtaq did not shout during the incident. As soon as he was hit, he fell down and became unconscious. This is right that near the site so many people reside. This is true that the quarrel began near house of Puma Ram. This would be wrong to state that he didn't see this incident and giving false statement. 19. Upon reappraisal of the evidence of PW-2 Narayan Singh, we have noted following infirmities in the prosecution case : (a) He has improved his total version. He had stated that he went along with motorcycle to house of deceased whereas in the examination-in- chief, he state that he does not know how to ride motorcycle; (b) If he would have really seen assault/murder of Mushtaq then he would have definitely stated to his brother, when he came to house of PW-1 (Haji Khan) with the deceased, who lodged the F.I.R. and in the statements under Section 161 of the Code (Ex.D-2). (c) He has also stated that first they went to house of Mahendra Singh Thanedar and then to house of Harchand Brahmin and then to house of Chotu Master whereas in his earlier statement these facts are not mentioned; (d) He also improved his version before the Court that Prahlad (A2) caught hold the deceased and gave fist blows and thereafter Ganga Ram (Al) gave 'danda' blows whereas this fact is not stated in his statements recorded before Police nor he narrated so to family members of the deceased; (e) Whole of the night, Narayan Singh has not stated anything about this incident to anybody. This shows his unnatural conduct, therefore, it has to be held that he has not seen the incident at all and he is got-up eye- witness; (f) In the next day morning, family members of deceased called Narayan Singh when in the next day morning Mushtaq expired. At that point of time only Narayan Singh narrated this incident to the family members. This also shows his unnatural conduct. 20. On the aforesaid premise, according to us PW-2 Narayan Singh, who is solitary eye-witness, is not trustworthy and reliable and it is unsafe to convict the accused appellants on the basis of his evidence. In our opinion, the case is based on direct evidence and the direct evidence is not supporting case of the prosecution with regard to inflicting injuries by accused appellants. 21. Now the next evidence is recovery of 'danda' from accused appellant Ganga Ram (Al), which was also not found blood stained. In our considered opinion, when the case is based on direct evidence and the direct evidence is not supporting case of the prosecution then merely because of recovery of 'danda', which was also not found blood stained; it cannot be termed as sufficient evidence to connect the accused appellants with the commission of alleged crime. In view of unsatisfactory evidence, judgment of conviction recorded by the trial Court merely on the basis of surmises and conjectures cannot be sustained in the eye of law. 22. On over all view of the matter, according to us, the prosecution failed to prove the charge levelled against accused appellants and the commission of offence of murder by accused appellants is not duly established. Therefore, impugned judgment of conviction and order of sentence against accused appellants deserves to be quashed by allowing this appeal. 23. 22. On over all view of the matter, according to us, the prosecution failed to prove the charge levelled against accused appellants and the commission of offence of murder by accused appellants is not duly established. Therefore, impugned judgment of conviction and order of sentence against accused appellants deserves to be quashed by allowing this appeal. 23. For the foregoing reasons, the appeal filed by the appellants succeeds and the same is allowed. Consequently, the judgment and order dated 7.9.2006 passed by learned Additional Sessions Judge (Fast Track) No. 2, Bikaner in Sessions Case No. 82/2005, convicting the accused-appellants for offences under Sections 302 and 302/34 I.P.C. respectively and sentencing both of them to imprisonment for life with fine of Rs. 1,000/- each and in default of payment of fine, to undergo one month's additional imprisonment; is hereby quashed and set aside. Both the appellants are acquitted of the said offence. 24. Accused No. 1-Ganga Ram S/o Lichu Ram is in jail. He shall be set at liberty forthwith, if not required in any other case; whereas, accused No. 2 Prahlad Ram S/o Ganga Ram, who is on bail, his bail bonds are cancelled.Appeal allowed. *******