JUDGMENT 1. - On 26.8.2005, in the night at 8:00 PM, on the road going from village Badh Jahara to Bamanwas on the Kachcha passage on the side, Ramraj s/o Nemichand, was attacked by the accused with axe, iron knife and lathi etc. His motorcycle was snatched along with other valuable articles and thereafter, he was murdered by using lethal weapons. The trial court charged four persons, namely Govindraj @ Sukhendra s/o Ramswaroop, Priyatam Raj @ Bodya s/o Hiralal, Bhura @ Premraj s/o Bhartya @ Bharat Lal and Nandu @ Nand Kishore s/o Hiralal, for the offences under Sections 148, 302, in alternate 302/149, 397 and 120-B IPC. 2. The court of Additional Sessions Judge, Gangapur City, District Sawai Madhopur, vide impugned judgment dated 16.10.2007, held all the accused-persons guilty for the offences under Sections 148, 302, 302/149, 397 and 120-B IPC and vide a separate order of even date, sentenced them as under:- U/s 148 IPC- to undergo two year R.I. and to pay a fine of Rs. 1,000/- each, in default of payment of fine, to further undergo one month S.I. U/s 302 and 302/149 IPC- to undergo life imprisonment and to pay a fine of Rs. 5,000/- each, in default of payment of fine, to further undergo three month S.I. U/s 397/120-B IPC- to undergo seven years R.I. and to pay a fine of Rs. 2,000/-, in default of payment of fine, to further undergo two month S.I. 3. Govindraj, from whom valuable recoveries including recovery of motorcycle was effected, has opted not to prefer an appeal against the judgment of conviction and order of sentence. The present appeal has been instituted by Priyatam Raj @ Bodya, Bhura @ Premraj and Nandu @ Nand Kishore, to assail their conviction and sentence. 4. The criminal proceedings were set into motion on the basis of written report (Exhibit-P/1) submitted by Nemi Chand Meena (P.W.1), father of deceased Ramraj Meena. He presented the written report (Exbhiti-P/1) before Tej Raj Singh (P.W.23), SHO, Police Station Bamanwas. 5. Tej Raj Singh (P.W.23), who was then posted as SHO, Police Station Bamanwas, deposed in the court that on 26.8.2005, at about 11:50 PM, ten to fifteen persons came in a vehicle called Judgad (a cart on which engine is fitted) and they disclosed that in between Badh Jahara, Ramraj is lying murdered. His motorcycle is also not there. 5. Tej Raj Singh (P.W.23), who was then posted as SHO, Police Station Bamanwas, deposed in the court that on 26.8.2005, at about 11:50 PM, ten to fifteen persons came in a vehicle called Judgad (a cart on which engine is fitted) and they disclosed that in between Badh Jahara, Ramraj is lying murdered. His motorcycle is also not there. Since the report was reliable, SHO along with police party proceeded to the spot vide daily diary report (Exhibit-P/39). At the spot, Nemi Chand, father of the deceased presented the written report (Exhibit-P/1), which was sent to the police station through Constable Bhim Singh (P.W.20) and on the basis thereof, a formal FIR (Exhibit-P/38) was registered. The Investigating Officer, on the spot prepared a note regarding the articles recovered around the dead body. The dead body was taken into possession vide memo Exhibit-P/5. Panchnama of the dead body was prepared vide memo Exhibit-P/3. Site plan of the spot was also prepared vide memo Exhibit-P/2 and simple and blood stained earth was also lifted from the spot vide memo Exhibit-P/8 and Exhibit-P/9. From the spot, one broken stick, stained with blood and broken tooth of the deceased were also taken into possession vide memo Exhibit-P/10. The blood stained Angochha of the deceased was also taken into possession vide memo Exhibit-P/11. From the spot, one pouch of salted snack, one pack of Parle biscuit, cover of Mehak Gutakha and empty pouch of Supari were also taken into possession vide memo Exhibit-P/12. Crushed red chili lying at the spot was also taken into possession vide memo Exhibit-P/13. The spot was got photographed and the same has been proved vide memo Exhibit-P/15, and negative thereof as memo Exhibit-P/16. Vide memo Exhibit-P/40 the dead body was handed over the relatives of the deceased. 6. Having noted the proceedings carried at the spot, now we shall reproduce the true translation of the written report (Exhibit-P/1), on the basis of which a formal FIR (Exhbiit-P/38) bearing No. 214/2005 was registered at Police Station Bamanwas, as under:- "To SHO Police Station, Bamanwas. Subject: Regarding murder of Ramraj s/o Nemi Chand at Jahara to Bamanwas road, near village Badh Jahara and snatching of motorcycle. Sir, With regard to the above subject matter, it is submitted that Ramraj Meena, at 4:00 PM, had gone on motorcycle from Jahara to Bamanwas to purchase bearing of bullock cart. Subject: Regarding murder of Ramraj s/o Nemi Chand at Jahara to Bamanwas road, near village Badh Jahara and snatching of motorcycle. Sir, With regard to the above subject matter, it is submitted that Ramraj Meena, at 4:00 PM, had gone on motorcycle from Jahara to Bamanwas to purchase bearing of bullock cart. At 8:00 PM, he was returning to village. When he reached on the road near Badh Jahara, he was taken 150 feet away from the road in the field of Roop Singh Rajput and was murdered by unknown assailants (Badmash) who have taken away his motorcycle bearing No. RJ 25 2M 0995. Passer byers had given information regarding the murder at bus stand Jahara. They had informed that Ramraj was beaten by three persons. When the villagers went to the spot, they found that crushed red chili was lying there. The dead body of Ramraj was found 150 feet away from the road in the field of Roop Singh Rajput. The report is being presented. The legal action be taken. Nemi Chand Meena S/o Rewarmal Meena R/o Jahara, Police Station Bamanwas, Time 2:00, 27.8.2005." 7. The trial court convicted the appellants on the basis of testimony of eyewitnesses, recovery of stolen property upon which human blood was found, recovery of motorcycle and the recovery of bearing purchased by Ramraj, the deceased. 8. The prosecution has also recovered weapon of offence from the accused. It is to be noted that the motorcycle was recovered on 27.10.2005 vide memo Exhibit-P/36 from the possession of the accused Govindraj, who has not preferred appeal. Silver box belonging to the accused containing two gold rings and one gold chain had also been recovered. 9. So far the appellant Bhura @ Prem Raj is concerned, he had made a disclosure statement (Exhibit-P/42) that he has kept concealed one axe and can get the same recovered. Similarly, Nandu @ Nand Kishore had made a disclosure statement (Exhibit-P/43) that he had kept concealed one lath and he can get the same recovered. Priyatam Raj @ Bodya has not made any disclosure statement. It is to be noted that knife had also been recovered from Govindraj on the basis of recovery memo Exhibit-P/24, in pursuance of disclosure statement (Exhibit-P/45) made by him. Priyatam Raj @ Bodya has not made any disclosure statement. It is to be noted that knife had also been recovered from Govindraj on the basis of recovery memo Exhibit-P/24, in pursuance of disclosure statement (Exhibit-P/45) made by him. The axe was recovered from the accused appellant Bhura @ Premraj and as per FSL Report (Exhibit-P/47) the same has been tested negative for the presence of human blood. However, lath recovered from the accused-appellant Nandu @ Nand Kishore, has tested positive for human blood but qua group same was found inconclusive. Therefore, so far the present appellants are concerned, their conviction rests on the testimony of the eyewitnesses alone, as weapon recovered from one accused does not contain human blood and from another accused even though on the weapon human blood has been found, but so far group is concerned, the report of FSL has opined the same to be inconclusive. Thus, we shall exclude recovery of weapon qua the appellants. Except recovery of weapon, no other recovery has been effected from the appellants. Valuables of deceased were recovered from co-accused Govindraj, who has not preferred appeal, therefore, we shall not comment upon the same. 10. The prosecution has examined 2 eyewitnesses, namely Hans Raj (P.W.4) and Ramesh Chand Meena (P.W.22). 11. Hans Raj (P.W.4) in the court has deposed that on the day of occurrence, he had lost his buffalo. He was searching for his buffalo and for carrying search, at about 8:00/9:00 PM, he was going towards the village Feetpura, as he had learnt that his buffalo had gone towards that village. He was carrying Kisan torch. He was searching for his buffalo by using the torch. Near the road there is Bada (Charagah-grazing field). He heard the voice of Ramraj. Ramraj was telling accused, 'not to kill him'. He went one/two steps forward and saw in the torch light that Nanda, Govinda, Bhura and Sunil, present in the court, were giving beating to Ramraj. He saw all the four persons giving beating to Ramraj. This witness stated that "if any other persons were giving beating, he is not aware". He saw a motorcycle standing near pole. Ramraj was saying that "take away the motorcycle, if you need money take away the money, but don't beat me". After seeing the occurrence when he stepped forward, Nanda, Bhura etc. This witness stated that "if any other persons were giving beating, he is not aware". He saw a motorcycle standing near pole. Ramraj was saying that "take away the motorcycle, if you need money take away the money, but don't beat me". After seeing the occurrence when he stepped forward, Nanda, Bhura etc. told him that they have identified him and in case, he tells anything to anybody he will also be killed and they will finish his family. This witness stated that he searched for his buffalo but the same was not found. He returned back and sat on the culvert and had smoked bidi. He saw 2-3 cars coming. He also saw vehicle of police. He followed the vehicle stopped at the place where Ramraj was given beating. He reached at the spot and saw that the police along with 10-20 persons was standing there. SHO had seen the dead body in the light with him. The motorcycle was not there. Ramraj had received injuries on the head, ears and face. This witness stated that he is not aware as to why the accused had caused injuries to the deceased. This witness stated that Govind is resident of Vinega and others belonged to his village. Therefore, he knew them. Pritam is resident of village Jahara. He is present in the court. Pritam a day before the occurrence along with other accused was taking tea, therefore, the witness stated that he is also involved in the occurrence. 12. It is to be noted that as per Hansraj (P.W.4), Priyatam Raj @ Bodya appellant was not present at the spot. He had only taken tea along with other accused. Therefore, the witness has sought to implicate him for conspiracy. 13. Hansraj (P.W.4), the eyewitness stated in the court that on the next day, he remained in his village. He had not told about the occurrence to anybody. However, he had talked regarding the occurrence with his wife. When the police carried the proceedings at the spot in the night, he was present at the spot, at that time, 10-20 persons of police and 50-60 people were present there. He had not disclosed anything to the policemen, villagers and the family members of the deceased Ramraj. He had not disclosed anything, because of the fear of the accused. When the police carried the proceedings at the spot in the night, he was present at the spot, at that time, 10-20 persons of police and 50-60 people were present there. He had not disclosed anything to the policemen, villagers and the family members of the deceased Ramraj. He had not disclosed anything, because of the fear of the accused. After 3-4 days, his fear was lifted, then he informed the villagers about the occurrence. At that time, family members of Ramraj were also present. He had accompanied the family members of Ramraj after 3-4 days of the occurrence and had informed the police. This witness stated that he had informed the police that he was searching for his buffalo which went missing a day before. However, the witness admitted that this fact has not been recorded in the statement (Exhibit-D/1) recorded by the police under Section 161 Cr.P.C. This witness stated that from the spot his village is at a distance of 2 kms. This witness admitted to be correct that the village Kitpura does not fall between his village and the place of occurrence and the same is ahead. This witness admitted that at the spot there was no light. He had seen the occurrence from his torch. This witness stated that he cannot tell as to which accused was giving beating with which weapon. This witness admitted that there is kachcha passage from his village to village Kitpura and the same is a shorter route but the witness stated that he had not taken the shorter route. 14. It is to be noted that the occurrence in the present case has taken place on 26.8.2005. FIR was lodged on 27.8.2005, i.e. on the intervening night of 26th August and 27th August, 2005. However, the statement of Hansraj (P.W.4) (Exhibit-D/1) under Section 161 Cr.P.C. was recorded on 5.9.2005 after a gap of eight days. 15. Ramesh Chand Meena (P.W.22) in the court stated that Ramraj belonged to his family. Two years before his deposition in the court, he had seen Nandu, Bhura, Govindraj and Sunil causing injuries to Ramraj. He was coming from Bamanwas on motorcycle. He saw that on Kachcha passage, all five accused were causing injuries to Ramraj. Hansraj met him. 15. Ramesh Chand Meena (P.W.22) in the court stated that Ramraj belonged to his family. Two years before his deposition in the court, he had seen Nandu, Bhura, Govindraj and Sunil causing injuries to Ramraj. He was coming from Bamanwas on motorcycle. He saw that on Kachcha passage, all five accused were causing injuries to Ramraj. Hansraj met him. He asked him where he was going and Hansraj told him that five accused, Pritamraj, Bhura, Nanda, Sunil and Govindraj of Vinega, are causing injuries to Ramraj. This witness told Hansraj to accompany him to place of occurrence, upon which Hansraj said that he do not want himself to be killed. All five persons were causing injuries to Ramraj with axe, knife and lathi. This witness stated that Pritamraj saw him and he ran after him with lathi in his hand and had abused him. Then this witness hurriedly came on his motorcycle to the village. After reaching village, he narrated the occurrence to his mother. His mother was cooking meals. His mother told him that there is no need to inform anybody. His mother told him that in case he narrates occurrence, everybody will come to know about the incident and since this witness is the only son she will have nobody to look after her. Then this witness stayed in the house and had not informed anybody. Later he had gone to the place of occurrence and found that motorcycle of Ramraj was not there. Ramraj was killed. The entire village had gone there. He had also seen the dead body. Another accused Sunil is facing trial before the Juvenile Board. 16. This witness, in cross-examination stated that he is employed as Junior Fire Operator at Airport of India at Delhi. He was posted there in September, 2005. This witness stated that he was not employed in August, 2005. This witness stated that he had disclosed to the police that Priyatam Raj ran after him armed with lathi. But, as to why this fact has not been recorded in the statement (Exhibit-D/5), witness (P.W.22) could not offer any explanation. This witness (P.W.22) stated that the fact that accused were causing injuries with axe, lathi and iron knife, was told to the police, as to why the same has not been recorded in his statement (Exhibit-D/5) under Section 161 Cr.P.C., witness had not given any reason. 17. This witness (P.W.22) stated that the fact that accused were causing injuries with axe, lathi and iron knife, was told to the police, as to why the same has not been recorded in his statement (Exhibit-D/5) under Section 161 Cr.P.C., witness had not given any reason. 17. This witness (P.W.22) further stated that what he told to his mother, and what mother had disclosed to him, he has narrated the same for the first time in the court and earlier he had not disclosed this fact to the police. This witness denied the suggestion that after the statement had been made by Hansraj (P.W.4) he is giving out a version to support him. 18. As stated by us earlier, the occurrence had taken place on 26.8.2005 and the statement of Ramesh Chand Meena (P.W.22) was recorded by the police on 30.8.2005, after four days of the occurrence. 19. We need not notice the testimony of other witnesses, who have deposed regarding recovery effected from Govindraj @ Sukhendra and recovery of weapon from the present appellants, as we have already mentioned that the recovery of weapon from the accused in no way connect them with the crime and so far their case is concerned, it entirely rests upon the testimony of two eyewitnesses, namely Hansraj (P.W.4) and Ramesh Chand Meena (P.W.22). 20. After hearing the learned counsel for the parties, we are of the view that Hansraj (P.W.4) and Ramesh Chand Meena (P.W.22), both are made up witnesses. They have been introduced at much later stage. The statement of Hansraj (P.W.4) was recorded by the police under Section 161 Cr.P.C., after nine days of the occurrence and the statement of Ramesh Chand Meena (P.W.22) was recorded after four days of the occurrence. Hansraj (P.W.4) is totally silent regarding his meeting with Ramesh Chand Meena (P.W.22). Hansraj (P.W.4) has not named Priyatam Raj @ Bodiya, as the one who was present at the spot. He had stated that he had seen him a day before occurrence sitting with other accused, whereas, Ramesh Chand Meena (P.W.22) in the court stated that Priyatam Raj @ Bodya ran after him armed with lathi and had abused him. Therefore, both the eyewitnesses have not only made discrepant statements but have contradicted each other on material facts. He had stated that he had seen him a day before occurrence sitting with other accused, whereas, Ramesh Chand Meena (P.W.22) in the court stated that Priyatam Raj @ Bodya ran after him armed with lathi and had abused him. Therefore, both the eyewitnesses have not only made discrepant statements but have contradicted each other on material facts. Furthermore, both the witnesses have improved their case and have been duly confronted with their previous statement (Exhibit-D/1 and Exhibit-D/5) recorded under Section 161 Cr.P.C. by the police. 21. We cannot fathom any reason, as to why witnesses remained silent and have not disclosed to any villager or to the police that the present appellants have caused injuries to the deceased Ramraj. When police arrived at the spot and villagers were also present there, Hansraj (P.W.4) had gone to the spot but he remained mum. The witness gave an explanation that for 3-4 days he was under fear and after the said period, his fear was lifted and then went to the police with the relations of the deceased. As to how and why fear was lifted, no explanation has been given and even if we believe that Hansraj (P.W.4) had gone to the police station after 3-4 days, his statement under Section 161 Cr.P.C. has been recorded after eight days. 22. Ramesh Chand Meena (P.W.22) is posted as Junior Fire Operator at Airport of India, Delhi. He is responsible official. He also remained mum and silent and had not informed anybody regarding the occurrence. 23. The conduct of both the witnesses is unusual, improbable and unnatural. The presence of both eyewitnesses, Hansraj (P.W.4) and Ramesh Chand Meena (P.W.22) at the spot is a great chance. They have reached the spot at the nick of the moment to witness the occurrence. Hansraj (P.W.4) has stated that he was going to search for his buffalo. He had not taken the shorter route towards the village where he had to find his buffalo. 24. Be that as it may, regarding the fact that Hansraj (P.W.4) has lost his buffalo, he had not carried the search in the morning, but was searching for the same in the night carrying the torch. He had not taken the shorter route towards the village where he had to find his buffalo. 24. Be that as it may, regarding the fact that Hansraj (P.W.4) has lost his buffalo, he had not carried the search in the morning, but was searching for the same in the night carrying the torch. He reached at the spot just only to witness the occurrence and thereafter, he quietly left the spot without informing anybody regarding the occurrence and immediately thereafter, he was at the spot when police reached there. The version given by Hansraj (P.W.4) is too improbable. 25. Similarly, Ramesh Chand Meena (P.W.22) also reached at the spot at the very moment when the injuries were being caused. He was passing through the road on motorcycle. He had seen the occurrence. He met Hansraj (P.W.4). He was chased by Priyatam Raj @ Bodya. He dragged the motorcycle hurriedly and came back to the village and thereafter, remained silent for four days. 26. Taking totality of circumstances, we are of the view that the presence of witnesses at the spot is highly doubtful. Their conduct rule out their presence at the spot as eyewitnesses. In a case of blind murder, they have been later introduced as witnesses. They are procured witnesses and hence, it is not safe to rely upon their testimony. 27. Consequently, we shall extend the benefit of doubt to the appellants. We are of the view that the appellants are entitled to the benefit of doubt. 28. As a result of above discussion, we accept the appeal and set aside the conviction and sentenced of the appellants. They are acquitted of all the charges. 29. In view of the acceptance of the appeal, we order that the appellants, namely Priyatam Raj @ Bodya, Bhura @ Premraj and Nandu @ Nand Kishore, be released forthwith, if not required in any other case. 30. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants 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. The bonds so furnished shall be effective for a period of six months. 30. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants 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. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Hon'ble Apex Court.Appeal allowed. *******