JUDGMENT 1. - Both these appeals arise out of a common incident and are filed against the common judgment dated 16.9.2006 passed by Additional Sessions Judge, Malpura Distt. Tonk in Sessions Case No. 11/2005 hence are decided by this common judgment.By the judgment under appeal, the accused appellants were convicted and sentenced as under: Prabhat Section 302 IPC: Life imprisonment and fine of Rs. 5,000/- in default of payment of fine to undergo five months imprisonment. Surajkaran @ Sujya Section 325 IPC - Three years R.I. and fine of Rs. 5,000/- in default of payment of fine to undergo five months imprisonment. under Section 323 IPC: Six month imprisonment and fine of Rs. 1,000/- in default of payment of fine one month imprisonment. All the sentences were ordered to run concurrently. 2. The brief facts of the case as per the prosecution are that PW/11 Banshi lodged a written report (Ex.P/13) at Police Station Malpura with the contention that on 30.5.2005 he was going along with his brother Heera from village Jareli to village Tordi to have medicines for his brother Heera. At about 8.30 PM when they reached near the village they saw that Suja, Naurat, Prabhat and wives of all the three were giving beating to his brother-in-law Ramkaran. Naurat and Prabhat were having Axe whereas Sujya was having weapon like stick and all attacked Ramkaran, left him in a ditch and ran away from the spot. On his raising voice, Ishar Kahar and Nathu Kahar came there. They all lifted Ramkaran from the ditch. Ramkaran was having injuries on his head and all over the body. He has been shifted to Tordi Hospital, where he died. It has also come in the evidence that on the issue of cutting of a dry tree the occurrence has taken place. On this written report, FIR No. 78/2005 was lodged and after usual investigation charge-sheet has been filed against the appellants. The case was committed and tried by Additional Sessions Judge, Malpura Distt. Tonk. 3. The charges have been framed against the appellants for the offences under Sections 302/34 IPC which were denied by the accused persons and they claimed to be tried. The case was committed and tried by Additional Sessions Judge, Malpura Distt. Tonk. 3. The charges have been framed against the appellants for the offences under Sections 302/34 IPC which were denied by the accused persons and they claimed to be tried. The prosecution has examined PW/1 Bhupendra Singh, PW/2 Lalchand, PW/3 Badri Kahar, PW/4 Nathulal, PW/5 Ramprasad Bairwa, PW/6 Ramvilas, PW/7 Smt. Narayandevi, PW/8 Ghasi, PW/9 Shyoji Kahar, PW/10 Gopal Kahar, PW/11 Banshi Kahar, PW/12 Babulal Kahar, PW/13 Mangilal Kahar, PW/14 Girvar, PW/15 Madan, PW/16 Rambabu, PW/17 Smt. Gulab, PW/18 Kanhaiyalal, PW/19 Chitar Kahar, PW/20 Mangatram, PW/21 Madanlal Mali, PW/22 Dr. Arjundas and PW/23 Ramchandra Nehra to support its case. Prosecution has also relied upon documents Ex.P/1 to P/26. 4. Statements of accused persons have been recorded under Section 313 Cr.P.C. Defence witnesses DW/1 Dr. O.P. Jain and DW/2 Smt. Lalita were produced. 5. After conclusion of trial, the appellants have been convicted and sentenced, as referred above, hence these appeals. 6. The contention of the appellants is that the case rests mainly on the evidence of PW/11 Banshi and PW/13 Mangilal. Both were introduced as witnesses. Name of PW/13 Mangilal does not find place in the First Information Report and PW/11 Banshi denied the presence of Mangilal at the time of occurrence whereas Mangilal has not shown presence of Banshi as eye-witness. Both are the brothers of wife of the deceased, hence interested persons. PW/3 Badri and PW/4 Nathulal independent witnesses and named in the written report have not supported the prosecution story. Due to dispute as regards to the property between the parties, the appellants have been implicated falsely.Per contra, the contention of the learned Public Prosecutor is that PW/11 Banshi and PW/13 Mangilal are the eye-witnesses to the incident. Their presence is not unnatural and their testimony has been further fortified by the evidence of PW/17 Gulab, wife of the deceased and medical opinion. No infirmity could be found in the findings and conclusion of the court below. The court below has not committed any error in convicting the appellants and no interference is needed. 7. Heard the learned counsel for the parties and perused the judgment under appeal as well as paper book and original record of the case. 8. No infirmity could be found in the findings and conclusion of the court below. The court below has not committed any error in convicting the appellants and no interference is needed. 7. Heard the learned counsel for the parties and perused the judgment under appeal as well as paper book and original record of the case. 8. PW/11 Banshi has lodged the Written Report and in the court also, he has stated that 9 months prior at 6.00 AM, famine work was going on at Badiya canal. He was also working there but as his brother Heera was ill, he went to Tordi along with Heera to have medicines for him. At about 8.00 to 8.15 A.M., he heard cries near the agricultural land of Ramkaran and when he went there, he saw that Ramkaran has been caught hold by the wives of Prabhat, Naurat and Shanti was screaming. Prabhat was having an Axe, he inflicted Axe blow on the head of Ramkaran. Ramkaran fell down thereafter Sujiya inflicted stick or Saria blow on the right hand and leg of Ramkaran. He was dragged by all and left him in a ditch and ran away. Badri also came at that time as he was grazing the cows. He further stated that he went to village, informed her sister Gulab and tried to have the tractor of Sukhlal. When he again returned to the spot, he saw Mangilal present there and Gulab was also there. Mangilal went to the village to have the tractor and then Ramkaran was shifted to hospital and Doctor declared him dead. He lodged the Written Report (Ex.P/13) which was written by Rambabu. His further contention is that his sister has stated that on the issue of a tree this beating has taken place. In cross-examination, he admitted the fact that Lalita or Mamta was the mate at the famine work and on that day, he had not returned on the work. It has also been admitted by the witness that for famine work scheduled time is 6.00 AM to 12.00 Noon. He has denied the suggestion that Ramkaran got injured by fall from tree. 9. It has also been admitted by the witness that for famine work scheduled time is 6.00 AM to 12.00 Noon. He has denied the suggestion that Ramkaran got injured by fall from tree. 9. Another witness of the prosecution is PW/13 Mangilal who claims himself to be an eyewitness and his contention is that he was grazing the cattle near Sahodara river, Badri Kahar was also there when he heard the noise, he went running and saw that Sujiya and Naurat were giving beating to Ramkaran and Shanti was abusing. Naurat and Sujiya were having Axe and after throwing Ramkaran in ditch, both accused left the spot. Further he has stated that after some time when he returned to the spot to transport Ramkaran after arranging tractor Banshi came there from the village. In cross-examination, he showed the presence of Badri and his contention is that he first reached at the spot and Badri also reached along with him. Further, he has stated that Banshi came afterwards. 10. Hence the evidence of PW/11 Banshi and PW/13 Mangilal are contradictory to each other. Banshi (PW/11) has not shown the presence of Mangilal (PW/13) as eye-witness so also Mangilal (PW/13) has denied the presence of Banshi (PW/11) as eye-witness. Apart from it, presence of Banshi (PW/11) has not been shown in the First Information Report. 11. PW/11 Banshi and PW/13 Mangilal both are chance witnesses. They are not having any agricultural field near the place of occurrence or any work there. Mangilal (PW/13) has stated that he was grazing the cattle there and admittedly PW/11 Banshi was on famine work on that day and schedule time for the famine work is 6.00 AM to 12.00 noon whereas occurrence has alleged to have happened at 8-8.30 A.M. Evidence of DW/2 Lalita is very pertinent to note. DW/2 Lalita has stated that she was mate on famine work at village Tordi. On that day Banshi was present for famine work since 6.30 till 12.30 noon. She has further stated that attendance was taken two times in the day one at 8'o clock and other at 11'o clock and both the times Banshi was present there, thus statement of DW/2 Lalita clearly rule out presence of Banshi at spot and make his testimony doubtful. Evidence of DW/2 Lalita clearly points out that Banshi being interested witness has been introduced and is not a trust-worthy witness. Evidence of DW/2 Lalita clearly points out that Banshi being interested witness has been introduced and is not a trust-worthy witness. 12. The presence of these two witnesses seems to be doubtful as it can be noted that PW/11 Banshi has stated that Prabhat was having Axe and he inflicted Axe blow on the head of Ramkaran whereas stick or Sariya has been assigned to Sujiya. Per contra, Mangilal (PW/13) has not shown presence of Prabhat at the spot and Axe has been assigned to Sujiya and in FIR allegations have also been lodged against Naurat whereas Naurat has not been even charge-sheeted and no application under Section 319 Cr.P.C. has been filed against him. 13. Two witnesses who have been named in the Written Report and who came there immediately after the occurrence namely; PW/3 Badri and PW/4 Nathulal have been declared hostile. They have not supported the prosecution story. PW/4 Nathulal has not stated anything as regards the incident. He has been examined as a formal witness to site plan or seizure of the clothes of the deceased and he was not even declared hostile even by the prosecution. 14. PW/8 Ghasi and PW/9 Shyoji are also the eye-witnesses as per the prosecution both have been declared hostile and not supported the prosecution story. 15. PW/7 Narainidevi, mother of the deceased is the formal witness. She has not supported the prosecution story but in cross-examination, she has stated that 4 bighas of agricultural land is in her possession Sujiya @ Surajkaran was ploughing field for her. There is a tree in her field and Ramkaran has no right to cut the tree. This shows the dispute between the parties as regards the possession or ownership of the tree. PW/17 Gulab is the wife of the deceased. She is not an eye-witness to the incident and her contention is that Banshi had informed him about the incident and when she reached at the spot Badri and Mangilal were there. She has denied the fact that there is any dispute as regards the property between her husband and the appellants but in her previous statement she has stated that there is a dispute as regards the share in the property between his husband and his brothers and Prabhat is young brother of his husband and Sujya is nephew. 16. She has denied the fact that there is any dispute as regards the property between her husband and the appellants but in her previous statement she has stated that there is a dispute as regards the share in the property between his husband and his brothers and Prabhat is young brother of his husband and Sujya is nephew. 16. Presence of one other brother Heera has also been shown in the Written Report but he has not been examined and even the Investigating Officer has not explained that why he has not been examined by the Investigating Officer and thus an important witness has been withheld by the prosecution. 17. PW/22 Dr Arjundas has conducted the autopsy on the dead body and as per post mortem report (Ex.P/20), the cause of death is neurological shock due to injuries to vital organ brain. As per post-mortem report, the deceased has suffered six injuries and the injuries were found anti-mortem in nature. 18. In the totality of circumstances as referred above, it can be concluded that case rests on the testimony of PW/11 Banshi and PW/13 Mangilal. Both are real brothers of the wife of the deceased. Their presence is unnatural at the spot. Incident as narrated has completed within minutes and only at the nick of moment both witnesses by sheer chance arrived at the scene to witness the occurrence. Thus, it is not safe to rely upon the testimony of the witnesses whose presence at the spot is unnatural, unconvincing and improbable there. The conduct of the appellants have also been shown to be unnatural that on seeing the witness they dragged Ramkaran and put him in a ditch which gives unnatural contours to the offence. Initially six persons have been involved but charge-sheet has been filed only against two persons, hence after investigation the contents of the Written Report has not been found true in material particulars. Initially six persons have been involved but charge-sheet has been filed only against two persons, hence after investigation the contents of the Written Report has not been found true in material particulars. Independent witnesses have not supported the prosecution story and as PW/11 Banshi and PW/13 Mangilal are interested witnesses, deceased was having inimical relations with the appellants, statements of PW/11 Banshi and PW/13 Maniglal are contradictory to each other and not supported by any other evidence, it would not be safe to place reliance on the testimony of these two witnesses who are brothers of the wife of deceased, hence in the totality of the circumstances it can be concluded that the prosecution could not prove the offence against the appellants beyond reasonable doubt and are entitled for grant of benefit of doubt and deserves to be acquitted.In the result, both the appeals are allowed. The judgment under appeal dated 16.9.2006 passed by Additional Sessions Judge, Malpura Distt. Tonk in Sessions Case No. 11/2005 is set aside. The appellants are acquitted of the charges levelled against them. Appellant Prabhat is in jail, he be released forthwith, if not required in any other case. Other appellant Surajkaran @ Sujya is on bail he need not to surrender, his bail bonds and surety stands discharged.Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, accused appellants Prabhat and Surajkaran @ Sujya are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each and a surety bond in the like amount, before the trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellants, on receipt of notice thereof, shall appear before the Supreme Court.Appeal allowed. *******