JUDGMENT 1. - This appeal was filed by five accused persons Bhoop Singh, Mahendra, Kashi Ram, Hari Singh and Chhotu, against the judgment of learned Addl. Sessions Judge, Nohar dated 30.9.1983, convicting all the five accused persons for the offence under Sections 148 and 302 read with Section 149 I.P.C., and sentencing each of them to one year's rigorous imprisonment with a fine of Rs. 200/- for offence under Section 148, and with imprisonment for life and a fine of Rs. 500/- for offence under Section 302 read with Section 149, and further directing that in default of payment of fine each accused shall undergo five months' further rigorous imprisonment. 2. The appeal was filed on 11.10.1983, and was admitted on 13.10.1983. Then, on 11.11.1983 the application for suspension of sentence of the accused Mahendra, Kashi Ram, Hari Singh and Chhotu was allowed, and they were released on bail. Then, on 16.21984 sentence awarded to fifth accused Bhoop Singh was also suspended, and he was released on bail. Thus, all the five accused are on bail. During trial it was reported on 10.9.1999, that the accused Mahendra has expired, and a death certificate was also obtained, and enclosed. Thus, out of the five appellants the appeal of Mahendra abates. Consequently, the present appeal is required to be considered to be an appeal on behalf of remaining four accused only. 3. Facts of the case are, that one Fularam Jat R/o Chiriya Gandhi lodged a report at P.S. Bherani at 7.45 P.M. (date we are not mentioning as that is one of disputed points) to the effect, that his brother Kalu Rim bears enmity with Hari Singh, Kashi Ram R/o Chiriya .Grandhi. There is litigation between the relationship ( vkilh fj'rs esa eqdnesckth pyrh gSaA ) and on that count yesterday at 2P.M. on the Bus Stand Gandhi Bari on the shop of Jagan, Kalu Ram was sitting, at that time Chhotu intimated, thereupon Hari Singh, Kashi Ram, Mahendra, Chhotu, Bhoop Singh sons of Moman Ram R/o Chiriya Gandhi came duly armed with axe, and lathi, and in front of shop of Jagan they started beating Kalu, but Kalu took shelter in the shop by rushing into it, but all these persons had broken his head with lathis and axe, and have killed him. At that time his elder son Dilip and his nephew Kashi Ram were there at the bus stand, who had seen the incident. There were many other persons seeing the incident. On receiving this information he went to the shop of Jagan, and saw that Kalu Ram was having injuries on his head, and face, and was lying dead in the shop of Jagan. On this information a case under Sections 302, 147, 148 and 149 I.P.C. was registered, and investigation commenced. At this place we may observe, that in Ex.P-1 date of incident is said to be 14.6.1982 at 2 P.M. The F.I.R. in the prescribed column shows to have been lodged on 14.6.1982 at 7.45 P.M., but even according to the contents of this report, as noticed above, the incident took place on the earlier day. Obviously it should be 13, while it is contended before us, that the F.I.R. was, as a matter of fact, lodged on 15th, it reached the Magistrate at 8.30 P.M. on 15th, and even other circumstances were pointed out, which we will discuss later. On this information, after registering the case necessary investigation were undertaken, post modem was got conducted on 15th, report whereof is Ex.P-9, and after completing investigation, challan was filed against all the five accused persons, wherefrom the case was committed. 4. The learned trial Court framed the charges for the aforesaid offences. During trial some 12 witnesses were examined by the prosecution, which include the star witnesses being PW-1 Fula Ram, PW-2 Jagan, PW-3 Kashi Ram and PW-4 Dilip. PW-1 being the informant, PW-2 being the shop keeper Jagan, PW-3 Kashi Ram is the nephew of the deceased (being the son of Ranjeet, the other brother of the deceased) and PW-4 Dilip is the sons of the informant. Obviously they have been produced as eye-witnesses, or material witness to unfold the prosecution case. Likewise, the prosecution tendered in evidence some 36 documents. The accused persons took the stand of denial. They also denied to have got made various recoveries. The learned trial Court after so completing the trial convicted and sentenced the five accused persons as above. 5. Obviously they have been produced as eye-witnesses, or material witness to unfold the prosecution case. Likewise, the prosecution tendered in evidence some 36 documents. The accused persons took the stand of denial. They also denied to have got made various recoveries. The learned trial Court after so completing the trial convicted and sentenced the five accused persons as above. 5. The learned trial Court first of all discussed the aspect of formation of unlawful assembly, with common intention to cause death, and referred to Ex.F-36, an F.I.R. lodged by the accused Hari Singh, on that very day, 14.6.1982 at 7.30 P.M., to the effect, that Om Prakash, Sant Lal, Mange Ram sons of Harpat are their relations, and there is enmity between Kalu Ram on the, one hand, Om Prakash, Mange Ram, and Jai Singh on the other hand. They are on litigating terms. With this, it was alleged, that last evening Kalu and Jai Singh came in the Chowk of their village and threatened him. Then, on the date of report being 14.6.1982 at 2 in the noon, their brother Chhotu came from his in-laws house, and alighted at the bus stand Gandhi Bari, at that time Kalu and his nephews Dilip and Kashi Ram stopped Chhotu Ram, and intimation was sent at his house. Thereupon his brothers Kashi Ram, and Bhoop Singh, and the father Moman Ram came there armed with lathis, and when they reached near the Kund, situated near the house of Hans Ram Chamar, Kalu Ram came armed with single barrel 12 bore gun, and started firing at him, but his father did not get separated, and Kalu fired from that 12 bore gun on his father, with the result, that his father died on the spot. Kalu Ram started reloading the gun, but since empty cartridge did not come out, he along with Kashi Ram and Bhoop Singh challenged Kalu Ram, who ran towards bus stand, thereupon they chased him, and near the shop of Jagan, injuries were inflicted on the head and face of Kalu Ram, who concealed himself in the shop of Jagan. The informant and Bhoop Singh entered in the shop, while Kashi Ram remained out side. The informant and Bhoop Singh entered in the shop, while Kashi Ram remained out side. Kalu Ram was made to fall in the shop, and injuries were inflicted to Kalu Ram with lathis, they took the 12 bore gun with empty cartridges, and came to their father who was bleeding. After one hour the victim died of firearm pallets, and he has come along with Kashi Ram to lodge the report. On this report F.I.R. No. 40 was registered, for the offence under Section 302 I.P.C. It was noticed, that in this report itself, the informant Hari Singh himself has disclosed about himself causing injuries on the face and head of Kalu Ram in the shop of Jagan, by entering the shop along with Bhoop Singh. Then it was noticed, that the F.I.R Ex.P-1 has been lodged at 7.45 P.M. wherein also the incident is said to have taken place at 2 P.M., and there is interpolation in the figure 1 and 0 in the F.I.R. Number, and it is alleged in this Ex.P-1, that at about 2 in the noon when the brother of the deceased was sitting on the shop of Jagan, accused started beating the deceased outside the shop, and inflicted fatal injuries, and when his brother entered the shop, there also he was beaten. Thus it was found, that presence of Dalip and Kashi Ram has been admitted by the accused themselves, from the averments contained in Ex.P-36. Thus, the learned trial Court proceeded with accepting presence of PW-3 and PW-4 at the place of incident, and their being eye-witnesses. 6. Then, the evidence of PW-2 has been discussed, and it was found, that this witness Jagan Nath had turned hostile, but he was treated to be eye-witness. Then the evidence of informant PW-1 was discussed, who also proved the site plan Ex.P-2, Panchayatnama Ex.P-3, and the recovery memo of blood stained clothes of the deceased. It was noticed, that this witness is wavering on the aspect of F.I.R. being lodged on 14th or 15th, but then it was found that his evidence cannot be discarded altogether, F.I.R. not being a substantive piece of evidence, nor is the last word of prosecution. Thus, implicit reliance was placed on the aforesaid eye-witnesses. 7. Then, certain circumstances were also considered, viz. Thus, implicit reliance was placed on the aforesaid eye-witnesses. 7. Then, certain circumstances were also considered, viz. the recovery of lathi from Hari Singh, recovery of lathi from Kashi Ram, recovery of- Kulhari from Bhoop Singh, and recovery of other lathies, from Mahendra and Chhotu each. Then, the argument of incident being out come of sudden and grave provocation was negatived, and was held to be an act of retaliation. With these findings the accused persons have been convicted as above. 8. We have heard the learned counsel for the appellants, and the learned Public Prosecutor. 9. Before discussing the prosecution evidence, we would like to refer to Ex.P-36, as this has been considered to be of foundational importance, and the evidence of PW-3 and 4 has been substantially believed on its basis. This document is available on the record at page A-56/2, and a look at it shows, that it has been filed vide application dated 25.5.1983, available in record at page A 56/1. Then this original Ex.P-36 is nothing but a type copy of some paper, purporting to be FIR., which is neither photostat copy, nor any certified copy, nor compared by anybody in authority. It does not bear any mark, to attach any sanctity about its reliability or make it admissible. The matter does not end here. PW- 11 Dungarmal, S.H.O. the investigating Officer has proved this document also, by deposing that on 15.6.1982 accused Hari Singh S/o Moman Ram Jat appeared, and lodged an oral report, that Kalu Ram has killed his father Moman Ram, by a gun fire. This report is Ex.P-36, and bears his signature 'A to B', while thumb mark of Hari Singh is at point 'X to Y'. This report was read over to Hari Singh who understood it and found it to be correct, and put his thumb mark, and after investigation challan was filed. Likewise, he has further deposed in cross-examination, that after receiving the report Ex.P-36 he did not relieve Hari Singh, and had carried him with him to Gandhi Bari, and since then Hari Singh is continued to be with him. He took Kashi Ram also with him from Police Station Bherani, and he also continued to be with him. Likewise, he has further deposed in cross-examination, that after receiving the report Ex.P-36 he did not relieve Hari Singh, and had carried him with him to Gandhi Bari, and since then Hari Singh is continued to be with him. He took Kashi Ram also with him from Police Station Bherani, and he also continued to be with him. Even at the cost of repetition it may be observed, that Ex.P- 36 does not bear any marks like 'A to B', much less thumb mark or the mark 'X to Y'. Then, in cross-examination, he has further deposed that in the said F.I.R. he prepared Panchnama Lash Ex.D-8, Fard Surat Haal Lash Ex.D-9, Ex.D-6 and D-7 are the site plan and site inspection note, which depict the correct situation as was found. Then, he has admitted that in Ex.P-11, 13, 27, 34 F.I.R. Number is not mentioned. Then, gun was recovered in F.I.R. No. 40/1982 (Ex.P-36) which was sent to F.S.L., which was having one empty cartridge blocked in the barrel, and that at that time gun was with Kalu Ram, and that, Kalu Ram had committed murder of Moman Ram at place 0' shown in Ex.P-2. It may be noticed that Ex.P-2 is the site plan of the present case, showing place of incident, which is a place situated south west to the shop of Jagan. During course of argument, we were told that in the case of murder of Moman Ram no challan was filed, rather final report was given, as the accused in that case being Kalu Ram, had become a subject matter of murder in the present case. This, in conjunction with the fact, that PW- 4 Dalip, who is son of the informant, has deposed to be not knowing Moman Ram, nor to have ever seen him, and that he did not even hear Kalu Ram having killed or murdered Moman Ram on the same date of incident, ( dkyw us ekseu dks mlh jkst ekj fn;k gks ,slk eSaus ugha lquk ) He deposed to be not aware about Kalu having undergone imprisonment. It would suffice to say, that if the story of Ex.P-36 were to be accepted, the two murders have taken place immediately one after another, and according to that report, this Kashi Ram was there, and claims to be nephew of Kalu Ram. It would suffice to say, that if the story of Ex.P-36 were to be accepted, the two murders have taken place immediately one after another, and according to that report, this Kashi Ram was there, and claims to be nephew of Kalu Ram. In such circumstances, when he chooses to depose to have not even heard of Moman having been murdered by Kalu on that day, this, coupled with the above catalogued circumstances, Ex.P-36, on which implicit reliance has been placed by the learned trial Court, cannot be relied upon at all. It is a different story, that Ex.P-36 is not even a document legally admissible in evidence in law. Thus, the very basis of basic assumption, made by the learned trial Court, to place implicit reliance on these two witnesses PW- 3 and PW-4 falls flat. 10. In this sequence in the F.I.R. Ex. P-1 it becomes very significant, as to whether it was lodged on 14th or 15th. There may be circumstances and cases, where even a day's delay in lodging the report may not be of very serious consequence, but here are peculiar circumstances of the case, viz. we are asked to believe, that two cross murders have taken place, and present one being in retaliation. In this sequence this fact is required to be attached substantial importance, as to whether the F.I.R. was lodged on 14th or 15th. 11. On looking at the front page of the F.I.R. it clearly purports to have been lodged on 14th at 7.45 P.M., but then reading all the contents thereof shows, that it narrates the incident of yesterday, i.e. 13th, and then it is received by the Magistrate at 8.30 P.M. on 15th. In this background, a look at the statement of informant Fula Ram PW- 1 shows, that he was cross-examined thoroughly on this aspect, and he has deposed in examination in chief, to have lodged the report Ex.P-1, and has proved it, but he has not given the date. Then, he was cross-examined in detail, and he has stated that after giving report he returned, the S.H.O. did not accompany him, and came later. Then, he has stated that the S.H.O. came on the next day at about 10-11 in the morning. Then, the witness has changed by deposing, that the S.H.O. had come at about 10-11 in the night. Then, he has stated that the S.H.O. came on the next day at about 10-11 in the morning. Then, the witness has changed by deposing, that the S.H.O. had come at about 10-11 in the night. Then, he further changed his statement, that the S.H.O. came to his village at 11 same night of the lodging of the report, and immediately he saw the dead body, and that the accused Kashi Ram and Hari Singh were already there with the S.H.O., who were immediately arrested on lodging Ex.P- 1, and the S.H.O. brought them with him. It may be noticed here, that the S.H.Q. PW- 11 does not say so to have arrested Kashi Ram and Hari Singh on receiving the report Ex.P-1. He has denied the suggestion about the report having not been lodged on 14th, and to have been lodged on 15th, by being delivered to the S.H.O. in the village only. Then, he has picked up another story by deposing, that at the time when he gave information on 14th, Ex.P-1 was not scribed, and Ex.P-1 was scribed on 15th. This version was given out on being put the word "yesterday" appearing in the body of the F.I.R. Then he has again stated, that after giving report to the S.H.O. in Police Station, the S.H.O. made writing, and obtained his thumb mark on Ex.P-1, and he does not know as to how the word "yesterday" has occurred, and he has maintained that report was not lodged on 15th but on 14th, and that in earlier part of his statement he had wrongly stated that the report was lodged on 15th at village. Then, he was confronted with his police statement Ex.D-1 "A to B" being reference of F.I.R. No. 41 dated 15.6.1982, he stated, that he does not know as to how it came to be scribed. He denied the suggestion about the F.I.R. being lodged on 15th, describing it to be of 14th. Then, he has stated that his sister, Kashi Ram and Dalip had come early in the morning of 15th, and on that very day S.H.O. interrogated them on 15th. He denied the suggestion about the F.I.R. being lodged on 15th, describing it to be of 14th. Then, he has stated that his sister, Kashi Ram and Dalip had come early in the morning of 15th, and on that very day S.H.O. interrogated them on 15th. The arrival of sister, Dalip and Kashi Ram is relevant, because in the earlier part he has stated, that sister of the informant is married at Rampuriya, and when Kashi Ram and Dalip came from Rampuriya, his sister also came from Rampuriya, as she had learnt about the incident, and in this process the informant denied the suggestion about Dalip and Kashi Ram to be not there at the place of incident, and to have come only after learning about the incident. In this very sequence again, a look at the statement of PW- 11 would show, that he deposed to have reached on the spot on 15.6.1982, and inspected the site, and prepared Halaat Moka Ex.P-20. On 15.6:1982 he prepared the Panchayatnama Lash, Fard Surat Haal Lash being Ex.P- 21, seized the sample earth and blood smeared earth, and got the post modem examination done, report whereof is Ex.P-9. In juxtaposition of this, we may recapitulate that PW-1 has deposed that the S.H.O., immediately on reaching the spot saw the dead body, and obviously other things were done later, and Fard Surat Haal Lash Ex.P-21 is dated 15.6.1982, and very intelligently time has not been mentioned. The mentioning of time has been omitted, not only on this document, but on very many other documents as well. Even in arrest memo of Kashi Ram Ex.P-18 time has not been mentioned. Though arrest memo of Hari Singh does mention time being 9 P.M. Site inspection note does not bear any date and time. Likewise, even the information memo Ex.P-23 and Ex. P-24 do not mention time. Likewise, the information memo Ex.P-30 and Ex.P-31 do not mention any time. All this does cast serious doubt, about the fact of lodging of the report on 14th. 12. Not only this, it is significant to note, that a bare look at Ex.P-36 also shows, that thereupon it is endorsed that F.R. No. 34 was given on 28.11.1982, under the heading "ADAM PATA". All this does cast serious doubt, about the fact of lodging of the report on 14th. 12. Not only this, it is significant to note, that a bare look at Ex.P-36 also shows, that thereupon it is endorsed that F.R. No. 34 was given on 28.11.1982, under the heading "ADAM PATA". It is notwithstanding all this, that as late as on 25.5.1983 the I.O. has chosen to depose the challan having been filed on this Ex.P-36 after completing investigation. This clearly shows, height of either telling lies, or careless attitude of the S.H.O., in giving statement in the Court. 13. Thus, it is clear, that the prosecution has resorted to manipulations on every convenient place, and has even gone to the extent of tendering inadmissible document in evidence, and the S.H.O. has gone to the extent of giving statements, even contrary to the contents of Ex.P-36. In such circumstances, the presence of PW- 3 and 4, who are none else than the son of the informant, and the nephews of the deceased, cannot be presumed, as done by the learned trial Court, and their evidence is required to be scrutinised with utmost care and caution, as to whether they were at all at the scene of incident, or that they had gone to village Rampuriya, to fetch the sister of the informant, and there having learnt about the incident, came in the morning, and thereafter the story was cooked up, introducing them as eye-witnesses, and F.I.R. Ex.P-1 was subsequently lodged. 14. In the above background now we proceed to examine the material and important evidence on record, on which the prosecution seeks to rest its case. 15. As noticed above that evidence comprised of PW-1, PW-3 and PW-4, as PW- 2 has been declared hostile. Before proceeding with that, we may recapitulate the material part of the F.I.R. Ex.P-1, which is lodged by PW-1 Fula Ram. According to this report after narrating the alleged actual incident, about the accused persons coming armed with weapons, and causing injuries to the deceased, deceased taking shelter in the shop of Jagan, but all of them having entered in the shop, and inflicted injuries, and having killed him. According to this report after narrating the alleged actual incident, about the accused persons coming armed with weapons, and causing injuries to the deceased, deceased taking shelter in the shop of Jagan, but all of them having entered in the shop, and inflicted injuries, and having killed him. It is alleged in the report, that at that time Jagan, informant's son Dalip and his nephew Kashi Ram were available on the bus stand, who had seen the incident, and very many other persons were there to see the incident. Thereafter on the informant's receiving information he went to the shop of Jagan, and saw the deceased dead having injuries on his person. Thus, according to this report, PW- 1 Fula Ram informant is not an eye-witness of the incident, and has lodged the report only on the basis of the information conveyed to him, obviously either by Dalip, Kashi Ram, and/or Jagan. Then, coming to statement as given in the Court as PW-1, it is deposed, that Kalu is on litigating terms with the relations of the accused persons. He was told about the incident to have occurred on the bus stand on the shop of Jagan Nath, he asked Jagan Nath about the incident, and he was told that Kalu has been killed, and Kalu did not do anything. Obviously as observed above, on that very day, at that particular time, as the story goes, Kalu had killed the father of the appellants, Shri Moman Ram, and since as has come in the evidence of the two eye-witnesses, they did not want to own that incident, and even decided to depose ignorance. It is in that sequence, that he has unnecessarily deposed, that his brother (deceased) did not do anything. Then he has deposed, that Jagan Nath had informed, that at the time of incident Dalip and Kashi Ram were there. Then, he made enquiries from Dalip and Kashi Ram. At the outset it may be observed, that it does not stand to reason, that if so close relatives being the nephews of the deceased had seen the incident happening, they would not do anything, and informant would be left to be informed about their presence by the other alleged eye-witness Jagan. At the outset it may be observed, that it does not stand to reason, that if so close relatives being the nephews of the deceased had seen the incident happening, they would not do anything, and informant would be left to be informed about their presence by the other alleged eye-witness Jagan. Then, in cross-examination he has further stated, that on 14th he had gone to village Jogiwala, wherefrom he returned at 3.30 in the noon, he had gone to Jogiwala on foot, though there is bus available. Then, he stated, that when he went to ask Jagan nobody else was with him. Then he has deposed, that the house of Kalu, his another brother Ranjit, and that of the witness are at the same place. He stated that Kashi Ram lives in the house of his father. While Dalip lives with the witness, and that the shop of Jagan is at a distance of 500 paces. He has also stated, that on 14th evening the S.H.Q. had come in the village, and he does not know as to whether they had seen the dead body of Moman Ram. Then he had admitted, that Moman Ram had died at 5 P.M. on 14th, who was father of the accused. Then, he has clarified, that he was told that Moman Ram had died at his own house, and he does not know as to how Moman Ram died, and he has reiterated, that when he learnt that the accused persons have killed his brother Kalu, he did not hear, or learn that Moman Ram had been shot dead by Kalu. He has also stated, that after returning from Jogiwala, Dalip (some times described as Deep Chand) and Kashi Ram had informed of the incident at his house. He was not told by these two witnesses that at that time Kalu Ram was having gun with him. Then, he was contradicted on the aspect of his having told about different weapons. He was also asked various questions about the situation inside the shop, which would have been put topsyturvy, if any beating would have been given in inside the shop, as alleged, like water having been split from the pitcher, pitcher to have broken, or presence of canister of flour etc. He was also asked various questions about the situation inside the shop, which would have been put topsyturvy, if any beating would have been given in inside the shop, as alleged, like water having been split from the pitcher, pitcher to have broken, or presence of canister of flour etc. Then, he has described the width of that Kothri to be 5 to 6 ft., and height to be 7 to 8 ft. Thereafter, significantly he has stated that at 11 in the night when S.H.O. came, Dalip and Kashi Ram were not available in the village as they had run away to Ramlpuriya, he did not find them at house, even when he returned from P.S. Bherani, though while he went they were there. Then, on the Court question he expressed inability to show any reason as to why these two persons Dalip and Kashi Ram were not taken by him to Police Station for lodging report. He has also admitted, that his sister is married at Rampuriya, and when Dalip and Kashi Ram returned, his sister was also with them, because she had learnt about the incident. He has denied the suggestion about Dalip and Kashi Ram being not there at the time of incident, and to have come from Rampuriya only on learning about the incident. Then, significantly he has stated that Dalip and Kashi Ram had called his sister (itA-ErcoieNifr Mf Giei 5-dT 'FR 0). He has also stated, that his sister, Dalip and Kashi Ram had come early in the morning of 15th, and that very day S.H.O. had interrogated them. 16. It is in this background, that now we proceed to examine the evidence of PW- 3 Kashi Ram, who is son of Ranjit, another brother of PW-1 Fula Ram, and the deceased. He has deposed that at 2 in the noon, on the fateful day, he along with Dalip were on the bus stand, there was a dialogue between Kalu and Mange Ram and Om Prakash. Mange Ram is the relative of the accused persons, though the deceased had no quarrel with Mange Ram. He has stated that on the bus stand, he and Dalip were going to fetch their Bhua (sister of PW-1 Fula Ram). At that time his uncle Kalu came from towards Chiriya Gandhi, he was having a gun, and the accused persons were also behind him. He has stated that on the bus stand, he and Dalip were going to fetch their Bhua (sister of PW-1 Fula Ram). At that time his uncle Kalu came from towards Chiriya Gandhi, he was having a gun, and the accused persons were also behind him. Bhoop Singh was having Kulhari, and others were having lathis, and they were chasing and beating him. The deceased stopped at the Dhaba of Jagan. All the five accused persons gave beating there, then the deceased took shelter in the Kothri. Thereupon Hari Singh and Bhhop Singh entered Kothri also, Jagan Nath tried to intervene, but Kashi pushed him away, and when they came forward, they were threatened with dire consequence, and were told that his uncle has been killed, and they may see their uncle, and do whatever they want to do. Then, they went to home, where nobody was there, and only aunt was there. Then, at about 3-4 P.M. Fula came to home, and the story was narrated. Then, Fula went to bus stand, and saw Kalu. At this place it may at once be observed, that the narration given by this witness is contradicted by the narration given by Fula, inasmuch as according to that witness PW-1, he was informed when he returned from village that his brother has been killed who was sitting on the shop of Jagan Nath. Then, he went to Jagan, and made enquiry, and was told the sequence of event, so also of the fact that Dalip and Kashi were also seeing the incident. It does not stand to reason, that if these witnesses had narrated him the event at the house, there was no occasion for Fula to learn from unknown sources, and go to Jagan, and learn these two persons to be eye-witnesses. We may stress again, that according to this witness he was at the bus stand, because he was going to fetch his Bhua, who was living at Rampuriya, who had come in the early morning of 15th. In cross-examination he has stated, that his house is at a distance of 100-150 paces from the bus stand. At the time he reached the bus stand, bus had already come from Bhadra, in which bus itself they had to go. In cross-examination he has stated, that his house is at a distance of 100-150 paces from the bus stand. At the time he reached the bus stand, bus had already come from Bhadra, in which bus itself they had to go. Then he has stated, that when he saw Kalu for the first time, he was near the Chhapar of Jagan, and was holding gun in his hand, it was not hanging on his neck. The bus coming from Bhadra was to go to Kagdana, had haulted to drop the passengers, and since at that time another bus goes to Bhadra, therefore, those passengers were also available at the bus stand. Then, he was confronted with some portion of his police statement Ex.D-2. He has stated, that when they saw Kalu, they had just come on the bus stand, and does not know since how, long Kalu was there on the bus stand. He has also stated, that it is only when accused persons had gone away, that they went to the house. Of course, before that they had seen Kalu inside the Kothri. On this aspect he was again confronted with Ex.D-2, then he has stated that he was standing at a distance of about 20 paces from the shop of Jagan, in the east of the house of Hans Ram Gurda, and when he returned home, the bus had come from Kagdana going to Bhadra. He has denied to have stated the portion A to B in Ex.D-2, about he, along with Dalip to have immediately rushed to house, and to have informed his uncle Fula Ram the whole incident, to which he stated that this was not so stated by him, as his uncle had already gone to other village, and had come later. He did not accompany Fula, when Fula had come to see Kalu. Then, he has stated that he was already interrogated by the police on 13th. Then, he informed that he does not know about dates. However, he was interrogated after three days of the incident. Significantly he has also stated that he was not in the village as he and Dalip had gone to village Rampuriya to bring their Bhua, who is married at Rampuriya. Then, he informed that he does not know about dates. However, he was interrogated after three days of the incident. Significantly he has also stated that he was not in the village as he and Dalip had gone to village Rampuriya to bring their Bhua, who is married at Rampuriya. Rampuriya is at a distance of 4 Kos from Gandhi Bari (around 12 kms.), and they had gone on foot, even though bus is available for going there. He has also stated, that on the date of incident at the time of around cow dust they had gone, they have narrated the incident to their Bhua, and have come on the next day in the morning. He has stated, that when they came from village Rampuriya, police had already come in the village, they were called for next day at Bhadra, and on the still next day his statement was recorded. Then, significantly he has stated that at the time of incident Hem Raj, Nahar Singh and many more persons were there on the spot. Neighbours were also there. Significantly no independent witness has been examined by the prosecution. Then, he has stated that he does not know father of the accused being Moman Ram, and that he never had any dealing with him, and stated to be knowing the accused persons from the date of incident only. He stated that his uncle Kalu was quite strong man. He has deposed ignorance about Kalu having already served sentence for the offence of murder of Laxman Dhilu. Then, he has stated that Mange Ram is the real Bahnoi of the accused persons, and has stated that subsequently he heard that Kalu had killed Moman. He had denied the suggestion about not having seen the incident, and to be giving false statement,or that on the date of incident he was in Rampuriya only, and to have not seen the incident. 17. Now, we take up the evidence of PW-4 Dalip. He has stated, that on the fateful day at about 2, he along with Kashi were there on the bus stand, who were going to fetch their Bhua, because his sisters were scheduled to be married on 24th. 17. Now, we take up the evidence of PW-4 Dalip. He has stated, that on the fateful day at about 2, he along with Kashi were there on the bus stand, who were going to fetch their Bhua, because his sisters were scheduled to be married on 24th. His uncle Kalu came from towards Chiriya Gandhi, who was having gun, and was being chased by the accused persons, they came near the shop of Jagan, and started showering blows on Kalu with Lathi and Kulharis. The deceased took shelter in the shop, thereupon Hari Singh and Bhoop Singh also went in the shop and inflicted further injuries, with the result that Kalu died. According to him many more persons were also there at the scene. He also states, that after the accused persons had gone about 50-60 paces after killing Kalu, then they went to deceased. Then, from the spot they went to home, narrated the whole thing to Fula Ram. Fula Ram then came to the place of incident, and asked Jagan, then he saw Kalu, and then went home. Then, Fula Ram went to lodge report at the Police Station Bherani. The motive is deposed by these witnesses to be, that his uncle had litigation with some relatives of the accused persons. He has stated Mange Ram to be Bahnoi of the accused persons, and father of the accused persons being Shri Moman Ram, and there was bad blood between the deceased and the accused persons, and Harpat Ram is deposed to be father of Om Prakash and Mange Ram. Kalu Ram was taking side of Jai Singh, in the dispute against Mange Ram. This so called motive is not deposed by anyone else, whether by Fula Ram, or by Kashi Ram. Then, the story narrated by Kashi Ram about, when Kalu was killed they intervened, is not deposed by this PW-4, rather Kashi Ram also contradicts Fula Ram, about the source of information of Fula, as to whether it was through Jagan, or from other source, and about his having come to know, that these persons are two eye-witnesses. In cross-examination he stated, that the land in dispute was cultivated by Harpat Ram, which is a Government land, and did not belong to Kalu or Jai Singh. In cross-examination he stated, that the land in dispute was cultivated by Harpat Ram, which is a Government land, and did not belong to Kalu or Jai Singh. He has stated, that when they left home Kalu was not at the house, as Kalu had already left the house at about 1.30 in the noon, but at that time he did not see gun with Kalu, and at the bus stand he was having the gun. He deposed ignorance as to from where Kalu procured gun, available with him at bus stand. Then, he deposed to be not knowing Moman, and that he never saw Moman. Then he has deposed, that Moman lives in another Bas, and he had no occasion to go to the house of Moman, and Moman never happened to visit their house. Then, significantly he has also stated, that he did not ever hear, that on that very day Kalu had killed Moman. Then as against the evidence of PW-3, he has admitted it to be true, that Kalu had undergone sentence for murder of Laxman (Lichman). Then, contradicting PW-3 he has stated, that the incident had already taken place before bus having come from Bhadra, destined to go to Kagdana, rather bus came later, and since the incident had taken place, therefore, they did not go to Rampuriya, and returned home, and went to Rampuriya in the evening. He has stated, that when they returned home, bus from Rampuriya to Bhadra had already gone to Bhadra, so also the bus going from Bhadra to Rampuriya had already gone. He claims to have remained at bus stand for half an hour, and many persons had come there, but nobody intervened to prevent the accused from committing the incident. It is strange, that if a person armed with gun is belaboured by five accused, armed with Lathis and Kulhari at the bus stand at a time when two buses have arrived, and many persons are there, nobody would either intervene, or would be available to see the incident, and narrate it in the Court. It is stated, that when he saw Kalu, he was going running from towards Chirya Gandhi, going towards west. It is stated, that when he saw Kalu, he was going running from towards Chirya Gandhi, going towards west. At that time Kalu was at the house of Hans Ram, whose house is in the north south lane, while the lane of bus stand is towards west, and house of Hans Ram is not visible from the shop of Jagan, but is visible from the open Chowk. He has stated to have not seen Kalu firing any bullet near the house of Hans Ram Chamar, and also did not see anybody living near the house of Hans Ram having sustained gunshot injury, nor did he hear the rapport of gunshot. He stated, that accused persons were at a distance of 2-3 paces from Kalu, they remained at bus stand for half an hour, and during this time they did not hear the rapport of gun shot. Then, he narrated the injuries received by the deceased. He stated that at the time when Kalu was being beaten he was having gun with him, and that no blow was aimed by the accused persons on the gun, or on the wrist, nor did they try to snatch the gun, and stated, that after killing they took away gun. Then, he has deposed, that he was standing towards the north, in the southern lane, at a distance of around 50 paces. Significantly he has stated, that injuries of Kalu did not bleed, which injuries were caused by Barchhi. He stated that when accused persons were chasing Kalu, the customers sitting on the shop of Jagan had got scared, and ran away. However, the passengers of the bus remained there only. According to him they returned from Rampuriya at 11 A.M. in the next morning, while according to Fula Ram PW-1 and PW- 3 Kashi Ram, they had come in the early morning. He stated that he along with Bhua came on foot, and not by bus. According to him police did not ask as to where they were standing on the side. Both these witnesses being PW-3 and 4 were interrogated by the police at the same time. Then, Dy.S.P. came to record the statement on 3rd day in the rest house at Bhadra. According to him police did not ask as to where they were standing on the side. Both these witnesses being PW-3 and 4 were interrogated by the police at the same time. Then, Dy.S.P. came to record the statement on 3rd day in the rest house at Bhadra. He has stated that Fula had not instructed them to go to Rampuriya, but they went Rampuriya in frightened state of mind, being afraid of accused persons, because they were in Chiriya Gandhi itself, and next day they came on their own, though they had not overcome the fear, and had gone all alone, did not carry any weapon either. He has deposed ignorance about Kalu having killed Moman from the same gun, or that Kalu intended to kill the sons of Moman also, from that very gun. He had denied the suggestion, about his not being there in the village, or to have gone to village Rampuriya. He has stated that he did not tell Fula Ram, that Kalu was sitting on the shop of Jagn before death, rather he had informed that Kalu was running with the gun, being chased by the accused persons. He stated that he had told Fula Ram that the accused persons threatened them with dire consequence if they intervene. He has denied the suggestion about he and Kashi having not narrated anything to Fula Ram. Then he has stated, that he does not know as to towards which side the accused persons had gone after incident, or from which lane they went. He denied the suggestion about not seeing the incident, and deposing falsely being nephew of the deceased. 18. This is the whole stock of the eye-witnesses. In this background a look at the statement of PW-2 Jagan would show, that he has not at all supported the prosecution case, and has stated, that at about quarter to two there was attack, and at that time he was coming after having purchased sugar, Kashi, Bhoop Singh, Hari Singh were coming having killed Kalu, and had run away. He identified the accused persons; one was having axe, the other was having Lathi. According to him many passengers of the bus had come, who had ran away. Then, thereafter Kashi and Dalip had come, and went away after seeing. He has denied to have seen any beating, but beating was given on the shop. He identified the accused persons; one was having axe, the other was having Lathi. According to him many passengers of the bus had come, who had ran away. Then, thereafter Kashi and Dalip had come, and went away after seeing. He has denied to have seen any beating, but beating was given on the shop. The prosecution of course got him declared hostile. 19. In our view, on the face of the above state of evidence of the three persons, which contradicts each other, on all material particulars, and aspects,including, rather basic aspects being, as to how Fula came to know of the incident, as admittedly Fula does not claim to be eye-witness. According to Fula he learnt about the incident, and then ascertained facts from Jagan, who told that Kashi and Dalip were also seeing the incident, while according to Kashi and Dalip they were there at the bus stand, and had seen the incident, and thereafter they rushed to the house, and narrated the things to Fula Ram. Thus, in the background of the facts, that admittedly there was marriage in the family, i.e. sisters of Dalip were scheduled to be married on 24th, and according to the witnesses they had gone in the evening to bring their Bhua to Rampuria, obviously in the marriage. The two witnesses maintained, that they had gone at the bus stand, at that time, for the purpose of going to Rampuriya, to fetch their Bhua. In this background what the Court is asked to believe by these two witnesses is, that despite being eye-witness of the incident, despite the accused persons being of the same village, despite they being in a frightened state of mind, and despite bus being available, they had gone 12 kms. on foot only, after sun set, all alone, even without carrying any weapon, and had come back with their Bhua in the early morning. It is also significant to note, that admittedly Fula was away to other village, and did not instruct these witnesses to go Rampuriya to fetch Bhua, yet they claim to have gone to bus stand to go to Rampuriya. It is also significant to note, that admittedly Fula was away to other village, and did not instruct these witnesses to go Rampuriya to fetch Bhua, yet they claim to have gone to bus stand to go to Rampuriya. In this background, what is significant to note is, that as this Court is desired to believe through Ex.P-36, that Moman Ram, father of the accused persons had been shot dead by Kalu that very time, and in the retaliation, and hot pursuit, the deceased was killed. As against this both these witnesses have clearly denied this fact, so much so that despite their claiming to be at bus stand for half an hour, they did not hear any rapport of the gun shot, much less did they see Moman Ram lying in the lane, in which, and at the place at which, they had first noticed Kalu Ram going. We are not speaking about existence of motive or the incident having taken place in retaliation, or the like, but we are considering this aspect, for the only purpose of judging about the fact, as to whether two witnesses PW-3, and PW-4 were at all there at the time of incident, obviously they had seen the incident, or not, or are introduced. According to this witness when they returned from Rampuriya police was available in the village, but their statements were recorded on third day of the incident, despite the fact, that these two persons only are the persons, who claimed to be the eye-witnesses. 20. In our view, in this state of affairs, the fact, as to whether the F.I.R. was lodged on 14th or 15th acquires greater significance, inasmuch as if it is lodged on 15th, the possibilities are not ruled out, that after PW-3 and PW-4 had arrived in the village from Rampuriya, it was decided to introduce them as eye-witnesses, and then only F.I.R. was lodged. Obviously, otherwise F.I.R. should have been lodged on 14th itself, and the circumstances already discussed above do clearly tilt heavily towards the fact of F.I.R. having been lodged on 15th. 21. Obviously, otherwise F.I.R. should have been lodged on 14th itself, and the circumstances already discussed above do clearly tilt heavily towards the fact of F.I.R. having been lodged on 15th. 21. It is well nigh possible that these two witnesses had gone to Rampuriya to fetch their Bhua, while Fula had gone to another village, and some incident ensued between Moman Ram and Kalu Ram, being Kalu Ram killing Moman with fire arm, and in retaliation, accused persons might have killed Kalu Ram, and believing this sequence of events, finding no evidence, the two witnesses PW-3 and PW-4 are introduced, to ensure conviction. 22. We are afraid, that thus the matter rests in realm of suspicion, howsoever strong which may be, it cannot take the place of proof. And as found above, in our view, the evidence of three witnesses being PW-1, PW-3 and PW-4 do not at all inspire confidence, to enable us to sustain conviction. 23. The result of the aforesaid discussion is, that the appeal is allowed. The conviction and sentence passed by the learned trial Court against all the appellants are set aside. They are acquitted of all the above charges, they are on bail, their bail bonds are cancelled, and they need not surrender.Appeal allowed. *******