J.P. Singh, J. 1. Ms. Sarishta Devi, accompanied by Ashwani Kumar, her brother, lodged a report with Police Station R.S.Pura, saying that, accompanied by their parents Sh. Kasturi Lal and Smt. Lajwanti, they had gone to their fields situated in Village Korotana, for mowing grass, when M/s Ajit Singh and Bishan Singh, the appellants, armed with spade and sickle, attacked their parents near the fields, at about 11 a.m. on October 2, 1997, with intention to commit murder. 2. Ajit Singh attacked with a spade, whereas Bishan Singh used sickle in causing injuries on the head and other parts of their parents body. 3. Their mother succumbed to the injuries on spot, whereas some persons present there, shifted their father, in an injured condition, to the hospital at R.S.Pura, where he too died. The Report indicated enmity between the assailants and the deceased over partition of land. 4. FIR No. 254/97 was registered at Police Station R.S.Pura under Section 302/34 RPC on the aforementioned report of Ms. Sarishta Devi. 5. Relying on the statements of fourteen witnesses, the documents and other material, collected during investigation of the case, the Final Police Report was laid against the appellants before the Judicial Magistrate, 1st Class, R.S.Pura, who committed it to the Sessions Court at Jammu. 6. Pleading `Not Guilty to the charge, framed under Section 302/34 RPC, the appellants claimed trial which accordingly, commenced on February 5, 1998. 7. During the currency of the trial, the prosecution examined PW-1 Sarishta Devi, PW-2 Ashwani Kumar, Singh, PW-7 Bachan Lal, PW-8 Manzoor Ahmed, PW-9 Bishamber Dass, PW-11 K.K.Raina and PW-12 Dr. Mohinder Kumar Khajuria, to support its case. 8. Denying the circumstances appearing in the prosecution evidence against them, in the course of their examination under Section 342 of the Code of Criminal Procedure, appellant Bishan Singh, pleading alibi, and appellant Ajit Singh, his innocence, examined DW-Major Ram and DW-Rudh Dass-Sarpanch, in their defence. 9. Relying on the statements of PWs-Sarishta Devi and Ashwani Kumar, the minor children of the deceased, And finding their version to have been corroborated by PW-7 Bachan Lal, photographer, the 1st Additional Sessions Judge, Jammu, the trial Court, convicted the appellants under Section 302/34 RPC vide his judgment of September 18, 2007 and sentenced them to Imprisonment for life and a fine of Rs.5000/- in terms of his order of September 19, 2007. 10. 10. Seeking setting aside of the judgment and order of the trial court, the appellants have approached this Court, in appeal. 11. We have heard learned counsel for the parties and considered their submissions, in the light of the materials on records of the trial Court. 12. Before examining the appellants contentions centering around their pleas that the prosecution evidence was unreliable and their conviction and sentence un-warranted, reference to the evidence led by the prosecution and the material produced in the case, may be necessary. 13. We would, therefore, proceed to examine the evidence and material on records. 14. PW-1 Sarishta Devi, is the daughter of the deceased. She says that appellant-Ajit Singh hit her father with a spade on the head when they reached near the fields. Her father fell down and when her mother appeared there, appellant-Bishan Singh attacked her with a sickle. Her father died on receipt of the first blow, whereas her mother became unconscious. On hearing their cries, appellants attacked them too. They ran away and on spotting a Tongawala, not known to them, they narrated the occurrence to him, who took them to the Police Station. After registration of the FIR, the police accompanied them to the place of occurrence, but by that time her mother too had expired. The police prepared seizure memos and other documents on spot. . 15. While under cross-examination, narrating about the dispute which her father and the appellants had regarding the land situated at Korotana, she says that the appellants had reaped wheat crop from the land whereafter her father had sown paddy crop therein. According to her, the occurrence had taken place in the land of one Parkash, which is at a distance of about 5/10 feet from their land. She was studying in 8th standard and her brother in the 4th when the occurrence had taken place. The village located nearby, is stated by her to be at a distance of about 20/25 feet from the place of occurrence. They had hidden themselves in a Paddy field and had not gone to save their parents. The whole occurrence, according to her, was over in fifteen minutes. Police had seized hair strands from her fathers hand. There was no altercation or scuffle before the occurrence and the appellants had straight away attacked her parents. They had hidden themselves in a Paddy field and had not gone to save their parents. The whole occurrence, according to her, was over in fifteen minutes. Police had seized hair strands from her fathers hand. There was no altercation or scuffle before the occurrence and the appellants had straight away attacked her parents. The dead bodies of her parents were lying side by side when the police had reached on spot. It was after about 1/1 1/2 hour that the dead bodies were carried therefrom in a BSF vehicle. 10/12 persons of the village too had accompanied the dead bodies in the BSF Truck. She had not, however, gone to the hospital when her fathers dead body had been taken and had opted to remain with the dead body of her mother at the place of occurrence. She denied the defence suggestion that the BSF personnel had lifted her father to the hospital before arrival of the police. 16. PW-2 Ashwani Kumar, supports his sister in having seen the occurrence from the paddy fields where they had hidden themselves. According to him they had been threatened by the appellants to run away from the place of occurrence. They went to the Village and narrated the incident to a Tongawala, who took them to Police Station, where they lodged the report. They, thereafter, came along with police and a truck on spot in which the dead bodies of his parents had been taken away. Giving the account of his and his sisters accompanying the deceased parents to the place of occurrence, after having travelled in a bus from Ward No. 7 R.S.Pura, he says that his father had fallen when he was attacked by a Spade by appellant-Ajit Singh from behind. Bishan Singh had struck his mother with a sickle when she laid herself on his father. The occurrence had taken place in the field where paddy had been sown. He denied the defence suggestion that the occurrence had taken place in a field which was fallow. According to him, 2/3 persons were present on spot when they reached at the place of occurrence along with police. The dead bodies of his parents were thereafter taken in a Truck by the Police. His father was alive when police had reached the place of occurrence. 17. According to him, 2/3 persons were present on spot when they reached at the place of occurrence along with police. The dead bodies of his parents were thereafter taken in a Truck by the Police. His father was alive when police had reached the place of occurrence. 17. PW-3 Tarsem Lals statement, recorded in part, may not be of any help as he was not produced by the prosecution for cross-examination, rendering his statement in-admissible in evidence. 18. PW-5 Kapoor Singh is an informal witness, who testifies to the receipt of the dead bodies of Kasturi Lal and Lajwanti. 19. PW-7 Bachan Lal is a witness who had taken photographs of Lajwanti from the place of occurrence. 20. PW-8 Manzoor Ahmad has testified having taken photographs of the dead bodies in the hospital. 21. PW-9 Bishamber Dass Patwari has proved the site plan EXPWBD and the Khasra girdawari EXPWBD/1, of Survey No. 136 min of Village Korotana. He, in the absence of the records, showed his ignorance about the allotment of land to the appellants or the deceased. 22. PW-11 K.K.Raina has proved the Forensic Science Laboratory Report EXPWKK indicating the hair strands to be the human head hair bearing morphological similarities with the hair strands marked B-388/97 to B-397/97. 23. PW-12 Dr. M.K.Khajuria, has proved the Post-Mortem examination reports of the autopsy of Kasturi Lal and Lajwanti who have been testified by him to have died because of the head injuries. He had found the following injuries on the person of the deceased- "Ms. Lajwanti- 1. A deep lacerated wound on the accipital region about 5" x 1" bone deep just above the neck. 2. Deep wound on the left knee lateral aspect 3" x 1/2" bone deep. 3. A wound on the right knee about l"xl/4". Kasturi Lal- 1. A wound on the forehead above right eye brow about 3 1/2" x 1/2" x 1/4" with # of the skull. 2. Wound 1" x 1/4" x 1/4" with sign of #. 3. A Lacerated wound on the upper lip, below nose and broken front teeth. 4. Bleeding nostrils and mouth ++." 24. According to him, Lajwanti was brought dead to the hospital whereas Kasturi Lal was gasping. He tried his best but could not save him. 25. 2. Wound 1" x 1/4" x 1/4" with sign of #. 3. A Lacerated wound on the upper lip, below nose and broken front teeth. 4. Bleeding nostrils and mouth ++." 24. According to him, Lajwanti was brought dead to the hospital whereas Kasturi Lal was gasping. He tried his best but could not save him. 25. According to the witness, BSF personnel had seen them fighting and thereafter had shifted the injured in their vehicle to the hospital. On his information, the Police came immediately in the hospital and the dead bodies were handed over to him for Post-Mortem examination. 26. Besides the above referred oral evidence, the prosecution has relied on the following documents/ material:- 1. EXPWSD FIR No.254/97. 2. EXPWTR Memo of receipt of the dead body of Kasturi Lal from Mortuary of the Hospital at R.S.Pura for conducting autopsy. 3. EXPWSD/1 Memo of receipt of the dead body of Lajwanti from the place of occurrence for autopsy. 4. EXPWKS Memo of receipt of the dead body of Kasturi Lal after autopsy. 5. EXPWKS/1 Memo of receipt of the dead body of Lajwanti after autopsy. 6. EXPWSD/4 Memo of seizure of soil from the place of occurrence. 7. EXPWSD/2 Memo of seizure of hair strands from the right hand fingers of Lajwanti. 8. EXPWSD/3 Memo of seizure of foot-wear (chappal) of Lajwanti. 9. EXPWSD/5 Memo of seizure of blood stained soil from the place from the place of occurrence. 10. EXPWSD/6 Memo of seizure of blood stained soil from the place from the place where dead body of Ms.Lazwanti was lying. 11. EXPWTR/3 Memo of seizure of blood stained spade recovered at the instance of Appellant-Ajit Singh. 12. EXPWTR/2 Memo of seizure of blood stained sickle recovered at the instance of Appellant-Bishan Singh. 13. EXPWTR/1 Memo of seizure of blood from the dead body of Lajwanti after her post-mortem, 14. EXPWTR/2 Memo of seizure of clothes of Lajwanti. 15. EXPWTR/3 Memo of seizure of the clothes of Kasturi Lal after post-mortem examination. 16. EXPWTR/4 Memo of seizure of the clothes of Kasturi Lal after post-mortem examination. 17. EXPWKK Report of Forensic Science Laboratory, Jammu. 18. EXPWMK Post-mortem report of Lajwanti. 19. EXPWMK/1 Post-mortem report of Kasturi Lal. 20. EXPWMK/2&3 Certificate of the Medical Officer to the effect that the seized weapons could cause the injuries found on the person of the deceased. 21. EXPWTR/4 Memo of seizure of the clothes of Kasturi Lal after post-mortem examination. 17. EXPWKK Report of Forensic Science Laboratory, Jammu. 18. EXPWMK Post-mortem report of Lajwanti. 19. EXPWMK/1 Post-mortem report of Kasturi Lal. 20. EXPWMK/2&3 Certificate of the Medical Officer to the effect that the seized weapons could cause the injuries found on the person of the deceased. 21. EXPWBD/1 Copy of the Khasra Girdawri pertaining to khasra No.631 of Village Korotona Tehsil R.S.Pura. 22. EXPWBD Site plan of the place of occurrence prepared by the Patwari. 23. EXPWBL to EXPWBL7 Photographs of Kasturi Lal taken in the hospital and Lajwanti taken from the place of occurrence. 27. Following is the resume of the statements of the witnesses which the appellants have examined in defence :- 28. DW-Major Ram says that BSF personnel were present on the place of occurrence-when he reached there on October 2, 1997 at 10 a.m. Lajwanti had died but Kasturi Lal was still alive. BSF Camp, according to him, is located 100 yards away from the place of occurrence. He had informed the BSF personnel that those responsible for killing had run towards the Border. The BSF personnel had shifted the deceased to the hospital in their vehicle. 29. According to him, he had informed the children of the deceased about the death of their parents and had accompanied them to the hospital. 30. DW-Rudh Dass-Sarpanch of Village Korotana says that he reached on the place of occurrence and found, that Kasturi Lal was dead, whereas Lajwanti had died in the way. Children of the deceased were not present on spot. The dead bodies of the deceased were carried in a BSF vehicle. 31. This is the whole evidence which the prosecution and the appellants have brought on records. 32. We would now proceed to examine the contentions raised at the Bar. But before doing that, the following facts emerging from the documents relied upon by the prosecution, need to be noticed. (1) FIR is stated to have been lodged at 1.30 p.m on October 2, 1997 by PWs-1 & 2. (2) FIR NO. 254/97 registered at 1.30 p.m records about the death of both Kasturi Lal ; and Lajwanti before the lodging of the FIR. (3) Dead body of Kasturi Lal is recorded to have been received in the hospital at 1.15 p.m. on 02.10.1997, in the Post-Mortem report EXPW-MK/1. (2) FIR NO. 254/97 registered at 1.30 p.m records about the death of both Kasturi Lal ; and Lajwanti before the lodging of the FIR. (3) Dead body of Kasturi Lal is recorded to have been received in the hospital at 1.15 p.m. on 02.10.1997, in the Post-Mortem report EXPW-MK/1. (4) Dead body of Lajwanti is recorded to have been received in the hospital at 3.15 p.m on 02.10.1997, in the Post-Mortem report EXPW-MK. (5) According to PW-12 Dr. M.K. Khajuria, Kasturi Lal was brought gasping in the hospital by the BSF personnel. He is stated to have succumbed to the injuries before 1.15 p.m., as indicated in EXPW-MK/1. 33. According to the statements of the two eye witnesses in the Court, none other had witnessed the occurrence until they left the place of occurrence to reach the police station on a Tonga. This statement of theirs stands contradicted by their earlier version in the FIR where they are reported to have said that some persons present on the place of occurrence had shifted their father to the hospital where he too had succumbed to the injuries. 34. Their statement that the dead bodies of their parents were lying on the place of occurrence when they came back along with police after lodging the first information report too stands contradicted not only by their statement in the FIR but also by the entries appearing in the Post-Mortem report EXPW-MK/1, where dead body of Kasturi Lal is shown to have been received in the hospital at 1.15 p.m. on 2.10.1997 i.e. before the lodging of the FIR. 35. When considered, in the light of the statement of PW-12, Dr. 35. When considered, in the light of the statement of PW-12, Dr. M. K. Khajuria that Kasturi Lal had been brought gasping in the hospital by the BSF personnel in a Truck at about 1.00 p.m., it becomes difficult to believe that part of the statement of the two witnesses, that they had left their parents at the place of occurrence and gone to nearby village to find a Tongawala who had taken them to the Police Station, in the absence of any investigation carried out by the police regarding this aspect of the matter as to whether or not the witnesses had travelled a distance of six kilometers on Tonga and as to who was the Tongawala who had carried them to the police station, And when no evidence has been produced by the prosecution to prove the aforementioned part of the statement of the two witnesses, either by production of the Tongawala or by any other evidence in this respect. 36. If one were to believe the statements of the two witnesses, as it appears in EXPW-SD that their father had been taken to the hospital where he had died, then the statement of the witnesses that they had travelled in a Tonga, cannot be believed, for, they could not have known about the death of their father in the hospital until the lodging of the FIR because they are stated to have straight away gone to the police station without meeting any one on the way who could inform them about the death of their father. 37. It comes out from the evidence produced in the case that Kasturi Lal had been taken in injured condition to the hospital at about 1.00 p.m. by the BSF personnel whose Camp is stated to be at a distance of about 100 yards from the place of occurrence. This evidence appears to be highly probable. The Investigating Agency has not, however, examined any one from the BSF camp to unfold the facts and the circumstances under which Kasturi Lal, the injured, had been carried by the BSF personnel to the hospital. 38. This evidence appears to be highly probable. The Investigating Agency has not, however, examined any one from the BSF camp to unfold the facts and the circumstances under which Kasturi Lal, the injured, had been carried by the BSF personnel to the hospital. 38. Carrying of Kasturi Lal in injured condition to the hospital by BSF personnel, around 1.00 p.m. rules out the presence of the children of the deceased on the place of occurrence which is stated by them to have taken place at about 11.00 a.m, in that, the time gap of about two hours from the time of occurrence and the reporting of the matter to the police is not explained by the prosecution. 39. History of the occurrence, as recorded in the Post-Mortem Reports indicates assault with history of fight. This according to PW-12, Dr. Khajuria had been recorded as per the information conveyed to him by the BSF personnel who had brought Kasturi Lal to the hospital. 40. The manner in which the occurrence is stated by the children of the deceased to have taken place, too appears to be improbable when one looks at the injuries found on the person of the deceased. 41. Failure of the prosecution to produce the Investigating Police Officer and those who had carried Kasturi Lal injured from the place of occurrence to the hospital, further weakens the case which the prosecution has projected relying only on the statements of the children of the deceased, whose presence on spot has been rendered reasonably doubtful in view of the contradictions noticed in their versions of the occurrence, in the light of the statement of PW-12, the entries appearing in the Post-Mortem Reports and absence of any explanation as to where had the two witnesses remained for about two hours of the occurrence before reaching the police station. 42. The evidence produced by the prosecution, when considered in the light of the statement of PW-12 Dr. Khajuria, that Kasturi Lal had been brought to the hospital by BSF personnel, and the existence of BSF Camp near the place of occurrence, makes the defence plea, that the children of the deceased were not present when the occurrence had taken place and the BSF personnel were the first to come on spot, reasonably probable, in the absence of any evidence to the contrary on records. 43. 43. The recovery of alleged weapons of offence at the instance of the appellants by the police, in the absence of the proof of their Disclosure Statements to the police, may not also be of any help to the prosecution, particularly, when the Forensic Science Laboratory Report EXPW-KK does not indicate the presence of blood on the weapons. 44. In view of the above discussion, we are of the view that the prosecution has failed to prove its case and appellants involvement in the murder of Kasturi Lal and Lajwanti, beyond reasonable doubt. 45. Allowing the benefit of doubt to the appellants, they are, accordingly, acquitted, setting aside their conviction and sentence recorded by the trial court vide its judgment and order impugned in the appeal. 46. Declining Confirmation Reference no. 8/2007, and allowing appellants appeal no. 21/2007, the appellants are directed to be set to liberty.