JUDGMENT : Mr. Mohammad Rafiq, J. 1. These four appeals, bearing D.B. Criminal Appeals No. 590/2015, 630/2015, 704/2015 and 828/2015, have been preferred by five accused-appellants, namely, Kalawati, Madanlal, Raju @ Rajendra and Mohan Lal and Ram Singh, who have been convicted by learned Additional Sessions Judge, Chhabra, District Baran (for short, ‘the trial court’), vide judgment dated 07.07.2015 in Sessions Case No. 98/2015 (old Sessions Case no. 272/2002), for offence under Sections 147, 323/149, 324/149, 325/149, 326/149, 307/149 and 302/149 of the Indian Penal Code. All above accused-appellants have been sentenced as under:- Conviction Sentence Under Section 147 IPC One year simple imprisonment with fine of Rs.500/-, and in default of payment of fine, to further undergo one month’s additional simple imprisonment Section 323/149 IPC Three months simple imprisonment with fine of Rs.500/-, and in default of payment of fine, to further undergo one month’s additional simple imprisonment Under Section 324/149 IPC One year simple imprisonment with fine of Rs.1000/-, and in default of fine, to further undergo three months additional simple imprisonment Under Section 325/149 IPC Three years simple imprisonment with fine of Rs.2000/-, and in default of payment of fine, to further six months additional simple imprisonment Under Section 326/149 IPC Four years rigorous imprisonment with fine of Rs.5000/-, and in default of payment of fine, to further undergo one year’s additional simple imprisonment Under Section 307/149 IPC Seven years rigorous imprisonment with fine of Rs.7000/-, and in default of payment of fine, to further undergo two years additional simple imprisonment Under Section 302/149 IPC Life imprisonment with fine of Rs.10,000/-, and in default of payment of fine, to further undergo one year’s additional simple imprisonment 2. Genesis of these appeals against judgment dated 07.07.2015 lies in the incident which took place in the night intervening 11.04.1999 and 12.04.1999, in which Mohan Lal, Ram Ratan and Rampal were murdered and Chhotulal, father of latter two, and three ladies, namely, Kailash Bai, Ramdhani Bai and Kastoori Bai received injuries. Total twelve persons, namely, Mohanlal, Raju @ Rajendra, Bajrang Lal, Chaturbhuj, Ram Singh, Ramdayal, Kalawati, Mandanlal, Hansraj, Heera Lal, Phool Chand and Prem, were named as accused in the written report submitted by injured Chhotulal but the police filed charge-sheet against only nine accused. Phool Chand and Prem, both sons of Gopilal, have not been apprehended yet. Total twelve persons, namely, Mohanlal, Raju @ Rajendra, Bajrang Lal, Chaturbhuj, Ram Singh, Ramdayal, Kalawati, Mandanlal, Hansraj, Heera Lal, Phool Chand and Prem, were named as accused in the written report submitted by injured Chhotulal but the police filed charge-sheet against only nine accused. Phool Chand and Prem, both sons of Gopilal, have not been apprehended yet. Accused Heera Lal was apprehended on 12.03.2011 and he was thereafter tried separately. Trial proceeded against remaining eight accused, namely Mohan Lal, Raju @ Rajendra, Bajrang Lal, Chaturbhuj, Ram Singh, Ramdayal, Kalawati and Madanlal. Prosecution examined 28 witnesses upto 30.11.2004 against eight accused, except Hansraj. Then Hansraj was apprehended on 01.09.2004. Supplementary charge-sheet against him was filed on 14.02.2005. The trial Court ordered his joining in the main case and thus he too was added as accused therein on 14.02.2005. By then already statements of 28 prosecution witnesses were recorded. The trial court, after framing charges against Hansraj, again examined 30 witnesses. Evidence recorded against original eight accused remained intact. The trial court, instead of giving two separate judgments, taking into account 28 witnesses examined in presence of eight accused charged on 04.11.2003, gave a common judgment dated 27.09.2007 whereby it convicted and sentenced six accused for offences under Sections 147, 323/149, 324/149, 325/149, 326/149 and 302/149 of the IPC, and acquitted three accused. 3. Aggrieved by the said judgment, six convicted accused preferred D.B. Criminal Appeals No. 1688/2007, 1844/2007, 1842/2007 and 1843/2007. This court, vide judgment dated 20.04.2015, disposed of all the four appeals and set aside judgment dated 27.09.2007, without disturbing acquittal of Chaturbhuj, Ramdayal and Bajrang Lal, on the ground that state has not preferred any appeal against their acquittal. This court held that procedure followed by the trial court was totally against the accepted legal position. The trial judge was bound to give two separate judgments. It was also expected of the trial judge to assign separate sessions case number qua trial of accused Hansraj. Even if assigning same sessions case number is considered as a procedural lapse, the trial court could not mix-up the evidence, which has been recorded against two sets of accused. While disposing of the appeals, this court remitted the matter to the trial court for passing fresh judgments. The trial court, therefore, delivered three separate judgments. The trial court, therefore, delivered three separate judgments. While disposing of the appeals, this court remitted the matter to the trial court for passing fresh judgments. The trial court, therefore, delivered three separate judgments. The trial court, therefore, delivered three separate judgments. By judgment dated 18.06.2014, it has decided Sessions Case No. 146/2011 - State v. Heeralal, and by two separate judgments each dated 07.07.2015, it has decided Sessions Case No. 98/2015 (old Sessions Case No. 272/2002) -State v. Mohanlal & Others and State v. Hansraj. Accused-appellant Heeralal has been convicted vide judgment dated 18.06.2014. Accused-appellants, namely, Kalawati, Madanlal, Raju @ Rajendera, Mohan Lal and Ram Singh have been convicted vide judgment dated 07.07.2015. Accused-appellant Hansraj has been convicted vide another judgment dated 07.07.2015. Aggrieved by judgment dated 07.07.2015, five accused-appellants have preferred these four appeals. 4. Facts of the case are that a ‘parcha bayan’ (Exhibit P- 33) was given by Chhotu Lal at 8.30 AM on 12.04.1999 to Station House Officer of Police Station Chhipabarod, District Baran, wherein it was alleged that in the previous night, his son Ram Ratan and his wife Kailash Bai (PW-1) were sleeping in their agriculture field. The informant and his wife Kastoori Bai (PW-3) were also sleeping separately in adjoining agriculture field. His son Rampal was sleeping outside the house in the agriculture field, whereas his wife Ramdhani Bai (PW-10) was sleeping on a cot inside the said house. Their daughter Manju (PW-25) was also sleeping with her, Chhotu Lal alleged that while sleeping on a cot, he had covered himself by a blanket and his wife had also covered her body by blanket. Someone inflicted ‘lathi’ blows on his head while he was asleep, as a result of which he became unconscious. Similarly, 2-3 ‘lathi’ blows were delivered on the head and face of his wife. When he gained some consciousness in the morning, he tried to look at his wife, but she was also unconscious. He went to Sattar, whose agriculture field was situated nearby, where he also called Shrilal. Roth of them enquired from him how he received the injuries. The informant told them that someone had given them beating in the previous night. He called for help but no one came forward as all were sleeping separately. They were subjected to beating by 7-8 persons. Roth of them enquired from him how he received the injuries. The informant told them that someone had given them beating in the previous night. He called for help but no one came forward as all were sleeping separately. They were subjected to beating by 7-8 persons. He alleged that in the evening of previous day when he went to the village, he met Ramsingh S/o Gopilal, Mohan and Raju of village Rai Chaturbhuj Meena and Bajranglal Meena, who were taking liquor in the house of appellant and were telling that they would commit a murder. The informant heard them speak so but he did not then pay any heed thereto. Certain other persons of the village were also consuming liquor with them. His sons Ram Ratan and Rampal and Mohanlal of village Guradi have died in the incident. He alleged that accused Ramsingh and Mohan had enmity with them and therefore they subjected them to beating with the intention to commit their murder. 5. On the basis of the ‘parcha bayan’ (Exhibit p-33), a regular first information report, bearing FIR No. 134/99 was registered with Police Station Chhipabarod, District Baran, on 12.04.1999. The police, after investigation, filed challan against accused, as indicated above. Charges for aforesaid offences were framed against accused-appellants, who denied the same and claimed to be tried. While the prosecution, in support of its case, examined 30 witnesses and got 59 documents exhibited, the defence got six documents exhibited. The trial court, vide impugned judgment, convicted and sentenced the accused appellants, namely, Kalawati, Madanlal, Raju @ Rajendra, Mohan Lal and Ram Singh, as indicated above. Hence these appeals on behalf of accused-appellants. 6. Mr. Suresh Sahni, learned counsel for accused-appellants, argued that injured Chhotu Lal Meena, who is father of deceased Ram Ratan and Rampal, in his ‘parcha bayan’ did not name any of the assailants, but rather stated that when he and his wife were attacked, both of them were asleep with their bodies covered by blankets. He gained consciousness early in the morning. He went to Sattar, whose agriculture field is adjoining, and Shrilal. Both of them enquired from him about the incident, whereupon he told them that unknown thieves had attacked them on the previous night. He gained consciousness early in the morning. He went to Sattar, whose agriculture field is adjoining, and Shrilal. Both of them enquired from him about the incident, whereupon he told them that unknown thieves had attacked them on the previous night. Injured Chhotulal could not depose before the court because he died one year after the incident, but independent witnesses, namely, Sattar (PW- 12), Pratap (PW-9) and Shrilal (PW-8), to whom he claimed to have first approached, have corroborated what he alleged in the ‘parcha bayan’. Learned counsel for appellants has taken the court through statements of all these witnesses. Learned counsel argued that the Public Prosecutor did not seek permission of the trial court to cross-examine them and to get them declared hostile. The prosecution would therefore be bound by the testimony of their witnesses. To buttress this argument, learned counsel relied on the judgments of the Supreme Court in Javed Masood and Another v. State of Rajasthan -2010(1) WLC (SC) Cri. 496 : (2010) 3 SCC 538 , Raja Ram v. State of Rajasthan - (2005) 5 SCC 258. It is submitted that Bihari Lal (PW-7), Shrilal (PW- 8), Pratap (PW-9) and Sattar (PW-12) have to be given utmost credence as to what they have stated because that attracts the doctrine of res gestae with reference to Section 6 of the Evidence Act. These are witnesses of truth because it were they, who were first of all approached by injured Chhotulal and told them about the attack on his family but despite enquiry by these witnesses, he did not give name of the assailants. 7. Learned counsel referred to Rapat of Rojnamcha Aam No. 632 (Exhibit p-44A) entered by the police in the Rojnamcha on 12.04.1999 at 9.30 AM when they started to the place of incident, and argued that therein it is mentioned that after the Station House Officer of Police Station reached there, the Circle officer, Chhabra (Baran) and Superintendent of Police, Baran, also arrived at the place of occurrence. They inspected the place of incident and also made enquiry from the agriculturists of adjoining agriculture fields and residents of nearby villages as to who could be the assailants. They inspected the place of incident and also made enquiry from the agriculturists of adjoining agriculture fields and residents of nearby villages as to who could be the assailants. It is thus clear from this that till that time names of assailants were not known and that injured witnesses have, by way of afterthought, sought to falsely implicate the accused-appellants owing to allegation of rape made by accused Kalawati Bai against deceased Ram Ratan. 8. Learned counsel has also referred to in details statements of injured eyewitnesses, namely, Kailash Bai (PW-1) W/o deceased Ram Ratan, Kastoori Bai (PW-3) W/o injured Chhotulal, and Ramdhani Bai (PW-10) W/o deceased Rampal, and submitted that all these witnesses have made lot of improvement upon their previous version given to the police under Section 161 Cr.PC. Their statement are full of contradictions and inconsistencies. Learned counsel for appellants has read out the statements of Suraj Mai (PW-14) and Moolchand (PW-15), both sons of injured Chhotulal and brother of deceased Ram Ratan and Rampal, and argued that they have given altogether different story of the incident. Their statements are highly unbelievable. Learned counsel also read out the statement of Manju (PW-25) D/o deceased Ram Ratan, and Shiv Raj (PW-26), S/o deceased Ram Ratan, who are child witnesses. In order to avoid duplication, we shall later refer to the statements of these witnesses in great details. 9. Learned counsel argued that there is huge difference between testimony of three injured witnesses and that of the independent witnesses. In fact, initial version of the first set of injured witnesses is contrary to the version of independent eyewitnesses. Neither any jewellery articles nor the amount of Rs.2000/-, allegedly looted from injured Chhotia, nor the torch allegedly used by accused Kalawati, has been recovered nor any of weapons of offence has been recovered. It is argued that accused were not named as assailants in the ‘parcha bayan’ of Chhotulal, but for the first time injured eyewitnesses, namely, Kailash Bai (PW-1), Kastoori Bai (PW-3”) and Ramdhani Bai (PW-10), by way of afterthought, in their police statements (Exhibit D-1, Exhibit D-2 and Exhibit D- 2) recorded belatedly on 29.04.1999, 22.04.1999 and 06.07.1999, respectively, have sought to implicate names of accused on the basis of suspicion because they suspected that it could be the accused who might have committed the offence. 10. 10. It is argued that although, the Investigating officer prepared the memos (Exhibit P-51 to Exhibit D-56) with regard to information given by accused under Section 27 of the Evidence Act for recovery of weapons of offence, but none of the weapons has been recovered. These recovery memos have been prepared in a very dubious manner, wherein it is indicated that each of the accused entrusted these weapons to some other person. 11. Learned counsel argued that it was a blind murder case and when the police failed to crack the case, it booked the appellants on the basis of mere suspicion and falsely implicated them by fabricating the evidence. Entire prosecution case rests upon the tutored testimony of so-called eyewitnesses, which is tainted with falsehood. It is argued that suspicion, howsoever strong it may be, cannot take the place of truth. It is settled principle of law that even if where in a case two views are possible after appreciation of evidence, then the view in favour of the accused is liable to be accepted. Learned counsel, in support of the argument, has relied on judgment of the Supreme Court in State of Punjab v. Ajaib Singh and Others - (2005) 9 SCC 94 , to argue that the courts of law should not be swayed away by emotions. Every murder is a heinous offence but the question that the court is called upon to decide is whether accused-appellants are those who have committed murder. In the facts of the present case, learned trial court has grossly misread the evidence with the result, which turned into manifest mis-appreciation of evidence, which, in turn, has caused great prejudice to accused-appellants. 12. Mr. Aladeen Khan, learned Public Prosecutor, opposed the appeals and argued that in the previous evening of the fateful day, the accused assembled on the ‘chabutra’ (platform) of the house of accused Mohan Lal and were seen consuming liquor. They were all discussing that they would liquidate Chhotulal Patel and his family. Learned Public Prosecutor argued that accused Kalawati Bai had lodged first information report against deceased Ram Ratan on allegation of rape and owing to this fact there was enmity between two groups. They were all discussing that they would liquidate Chhotulal Patel and his family. Learned Public Prosecutor argued that accused Kalawati Bai had lodged first information report against deceased Ram Ratan on allegation of rape and owing to this fact there was enmity between two groups. Reference is made to statement of Hukum Chand (PW-6) and submitted that this witness has partly supported the prosecution case that his house was adjacent to the house of accused Mohan Lal and that he had that evening seen 4-5 persons in the house of Mohan Lal, who were taking liquor and discussing their plan of liquidating family of Chhotulal. This corroborates what has been alleged by Chhotulal in his ‘parcha bayan’. Champa Lal (PW-5), whose house is situated just opposite the house of accused Mohan Lal, has although been declared hostile but he too has proved the fact that two accused had come to the house of Mohan Lal in the evening of the fateful day. Learned Public Prosecutor referred to the statement of Dakha Bai (PW-4) and submitted that although this witness has turned hostile but in cross-examination, she too admitted that Kalawati was seen abusing Ram Ratan in the market of Chhipabarod town, one or two days before the incident, which fact is narrated even in her police statement (Exhibit P-2). Hari Ram (PW-11) has also stated that there was enmity between two groups and that accused had told him 15-20 days ago that they would liquidate the family of Chhotulal. Accused Mohan had also threatened his brother deceased Mohanlal of dire consequences. 13. Learned Public Prosecutor also referred to statement of Shiv Raj (PW-26) and argued that this witness too has stated that in the evening of the fateful day, 7-8 persons were seen in the house of Mohan Lal in a drink party and they were consuming liquor. Those persons were resident of village Rai and Peeplya Chowki. They were seen abusing the family of Chhotulal. Learned Public Prosecutor argued that Kailash Bai (PW-1), in her statement, has proved the fact that only 2-3 days had passed after the full moon night when this incident took place and, therefore, the accused were visible and could be identified. She denied the suggestion that there was enmity between two groups with regard to share of profit of clandestine business of opium and smack. 14. She denied the suggestion that there was enmity between two groups with regard to share of profit of clandestine business of opium and smack. 14. We have given our anxious consideration to rival submissions and perused the material on record and respectfully studied the cited precedents. 15. Before we proceed to examine the arguments in support of challenged to the findings recorded by learned trial court on various grounds, we deem it appropriate to discuss and analyse the statements of various prosecution witnesses in the context of contradictions and inconsistencies pointed out by the defence. 16. Evidence on record reveals that the earliest information the police received was Exhibit p-42A, which they got even before registration of first information report on ‘parcha bayan’ of Chhotulal. This was entered in the ‘rojnamcha’ as Rapat No. 608 (Exhibit p-42A), on the basis of information given by Prahlad Kumar, in which he claimed that Manu Bai D/o Ram Ratan came to him in morning that day and informed that incident of ‘maar-peet’ took place in previous night at the tube-well of their agricultural field, in which her family members received injuries and one or two persons have died and their dead bodies were lying at the tube-well in agriculture field. This Prahlad Kumar has been examined as PW-24. He stated that Chhotulal was his ‘tauji’ (father’s elder brother) and that Chhotulal sent Manju Bai to him to inform about the incident, when he went to the place of incident, Chhotulal asked him to go to the police station to report the matter. He then accompanied the police officials to the place of incident. Even this witness, in cross-examination, has made contradictory statement, while in earlier part of cross-examination, he stated that Chhotulal informed that Mohanlal, Kali Bai, Madanlal, Ramsingh, Pholchand, Heeralal with 10-11 persons attacked them in the night but admitted that this fact was not mentioned in the inquest reports (panchayatnama of dead bodies of deceased Ram Ratan, Rampal and Mohanlal - Exhibits p-11, p-12 and p-13), to which he was one of the attesting witnesses. In later part of cross-examination, however, he admitted that when he went to police station to make the report of incident, till that time Chhotulal did not tell him name of any of assailants. Even in the entry made in ‘rojnamcha’ bearing Rapat no. In later part of cross-examination, however, he admitted that when he went to police station to make the report of incident, till that time Chhotulal did not tell him name of any of assailants. Even in the entry made in ‘rojnamcha’ bearing Rapat no. 632 (Exhibit p-44A), which was made when police party started for the place of incident, it is mentioned that circle officer of Chhabra and Superintendent of police Baran, inspected the place of incident and enquired from the agriculturists of adjoining fields as also residents of nearby villages as to who could be the assailants. Obviously, it was not known till that time as to who attacked Chhotulal and his family members. All these exhibits have been proved by investigating officer Ganpat Singh (PW-28). 17. Sattar (PW-12) has stated that when Chhotulal approached him, he was bleeding from his head. He told that certain thieves have subjected him to beating but he did not name who were they. In cross-examination also he stated that Chhotulal did not inform him names of assailants. Shrilal (PW-8) has also made similar statement that when Chhotulal approached them, he did not tell them name of any of the assailants. He rather stated that certain unknown persons subjected them to beating. Bihari Lal (PW-7) has stated that Chhotulal, on the date of incident, came to his tube well and immediately became unconscious. When Chhotulal gained consciousness, he told that certain thieves have subjected them to beating. This witness has also stated that Chhotulal did not tell names of assailants. Although, Pratap (PW-9), who was present in the agriculture field of Sattar along-with Shrilal and Biharilal, has been declared hostile, but in cross-examination, he too has stated that when Chhotulal came to Sattar, he did not give name of any of the assailants. Even the females of his family, who were injured, did not name the assailants. 18. Injured Kailash Bai (PW-1) W/o deceased Ram Ratan, has given a completely different version of the incident and has rather alleged that accused Kalawati was having torch in her hands and it was with the help of light of that torch the accused attacked members of the complainant party, but no such torch was recovered. She alleged that her earrings were also snatched by the accused but same were also not recovered. She alleged that her earrings were also snatched by the accused but same were also not recovered. While at one place in cross-examination, she stated that it was a dark night but at another place she stated that only 2-3 days had passed after full moon night. In cross-examination, she again stated that they were asleep when they were subjected to beating. She admitted that Kalawati had lodged the FIR against her husband deceased Ram Ratan on allegation of rape. Accused Mohan Lal and Ram Singh had abducted the daughter of Chhotiya, resident of their village. She denied the suggestion that accused had subjected them to beating on account of dispute regarding share in money earned by illicit trade of opium and smack. Her police statement was recorded belatedly on 29.04.1999 i.e. after 17 days from the date of incident, when for the first time she named the accused as assailants. 19. Similarly, injured Kastoori Bai (PW-3) W/o injured Chhotulal, has also alleged that there were about 15-16 accused, of which she recognised few, who were residents of their village. She alleged that her bracelet of silver and earrings of gold were snatched by the accused but none of these articles has been recovered. She has stated that accused Kalawati Bai had torch with her, but no such torch was recovered. She further stated tat she was subjected to beating when she was asleep by covering her body by blanket and it was a dark night. Accused Kalawati had lodged a false FIR against her son Ram Ratan on allegation of rape and owing to that enmity, accused have attacked them. Though Hukum Chand (PW-6) has been declared hostile, but, in his cross-examination, he stated that Mohan, Ram Singh, Bajranga, Chaturbhuj and Raju were present in the crowd that had gathered at the place of incident and people were talking that unknown persons had attacked the deceased and injured but no one named Mohan and Ram Singh. Her police statement was recorded belatedly on 22.04.1999 i.e. after 10 days from the date of incident, when for the first time she named the accused as assailants. 20. Injured Ramdhani Bai (PW-10) W/o deceased Rampal, named Madan, Phoolchand, Heeralal and Prem, and stated that 4-5 persons of village Rai including Raju, Jagdish and Kalawati were those who attacked them. Her police statement was recorded belatedly on 22.04.1999 i.e. after 10 days from the date of incident, when for the first time she named the accused as assailants. 20. Injured Ramdhani Bai (PW-10) W/o deceased Rampal, named Madan, Phoolchand, Heeralal and Prem, and stated that 4-5 persons of village Rai including Raju, Jagdish and Kalawati were those who attacked them. Deceased Mohanlal tried to intervene but the accused tied his hands and also murdered him. It was a dark night. This witness has gone to the extent of exaggerating that the accused had nailed her head, hand and legs. The accused were named with ‘gandasi’, swords, ‘dharia’, ‘bhala’. They were also having torch with them. They subjected them to beating in the light of a torch. They snatched her tops, one nose pin, one chain and necklace of gold. Name of these weapons and articles has been recovered by the police. Her police statement was recorded belatedly on 06.07.1999 i.e. after about three months from the date of incident, when for the first time she named the accused as assailants. 21. Hari Ram (PW-11), in his cross-examination, has admitted that his statement under Section 161 Cr.P.C. was recorded by the police 12 days after the date of incident. He happens to be brother of deceased Mohanlal. Perusal of his statement makes it clear that he reached the place of occurrence much after the incident. He has exaggerated by saying that accused Kalawati, Mohan Lal and Ram Singh had told him in village Guradi about 15-20 days ago that they will murder the family of Chhotulal. He tried to dissuade the accused from doing so but they did not agree. No such fact was earlier disclosed by him to anyone. In cross-examination, he stated that he told the police that accused Kalawati threatened them that they would liquidate Chhotulal and his family members, but he cannot say why police did not mention. Accused Mohan Lal had quarrel with brother of this witness and therefore he has been made target. This witness appears to be a planted witness. 22. Surajmal (PW-14) happens to be younger son of injured Chhotulal and brother of deceased Ram Ratan and Rampal. He has given entirely a different story than what has been stated by Bihari Lal (PW-7), Shrilal (PW-8) and Prahlad Kumar (PW-24). This witness appears to be a planted witness. 22. Surajmal (PW-14) happens to be younger son of injured Chhotulal and brother of deceased Ram Ratan and Rampal. He has given entirely a different story than what has been stated by Bihari Lal (PW-7), Shrilal (PW-8) and Prahlad Kumar (PW-24). He has alleged that on being informed by the villagers, he immediately reached the tube-well in their agriculture field. He found his father in injured condition and on enquiry his father told that some accused of their own village and some of villages Rai and Deopuria, have subjected them to beating. He rather named them as Mohanlal, Ramsingh, Prem, Phoolchand, Madanlal, Heeralal and Kalawati. In cross-examination, he stated that Biharilal gave this information to him at 4 o’clock early in the morning and Sattar and Shrilal were, at that time, accompanying him. None of these witnesses have corroborated his this version, rather Chhotulal, in his ‘parcha bayan’ has also not stated so. He did not deny that he did not narrate to the police in his statement under Section 161 Cr.P.C. that Tolaram, Babulal, Ramkaran and other persons were sitting with his father. In cross- examination he admitted that there was enmity between his family and Ramsingh, Kalawati, Prem etc. Taruvanta D/o Chhotulal of their village was abducted by Ramsingh and Prem, and she remained with them for about two months, but he denied the fact that in that matter, the accused persons were acquitted of the charge by the court for want of evidence. This witness also alleged that criminal case for offence under Section 376 IPC was lodged against deceased Ram Ratan by accused Kalawati. 23. Moolchand (PW-15), another son of injured Chhotulal and brother of deceased Ram Ratan and Rampal, has given a different version of the story that Biharilal came to him around 9 o’clock in the morning and informed about murder of certain persons at tube-well and thereafter he left the village to reach the place of incident. He stated that he caught hold of accused Ramsingh from the agriculture field of Sattar. He further stated that other accused, namely, Prem, Phoolchand and Hooriiall fled away but remaining accused Mohan, Chaturbhuj, Raju, Ramsingh and Ramdayal S/o Dhakad were caught. But this version has not been corroborated by any of the witnesses, much less Sattar. He stated that he caught hold of accused Ramsingh from the agriculture field of Sattar. He further stated that other accused, namely, Prem, Phoolchand and Hooriiall fled away but remaining accused Mohan, Chaturbhuj, Raju, Ramsingh and Ramdayal S/o Dhakad were caught. But this version has not been corroborated by any of the witnesses, much less Sattar. In cross-examination, he stated that when he reached there, his brother Ram Ratan was still breathing, which fact is also not corroborated by any other witness. 24. Manju (PW-25), who at the time of incident was about 8 years and at the time of recording statement in the court was 12 years of age, has made marked improvement over her previous version given to the police under Section 161 Cr.PC. (Exhibit P-5), and could not explain why she did not name any of the accused with specific role, She rather stated that she had given names of all the accused to the police and also about the weapons, which they used in assailing the deceased and injured but she could not explain why the police has not mentioned so in her statement under Section 161 Cr.PC. (Exhibit P-5). Apparently, she has been tutored to assign specific role in her statement before the court. 25. Shivraj (PW-26) S/o deceased Ram Ratan, who was 11 years of age at the time of incident and 16 years of age at the time of the court statement, has stated that in the evening of the date of incident, 7-8 persons were consuming liquor in house of accused Mohanlal. Some of them were residents of village Rai and others were of Peeplya Chowki. The accused were using abusive language and were saying that they would murder the family members of Chhotulal Patel. He named the accused-appellants as those, who were present there. But, in cross-examination, he has admitted that he did not inform about this fact to his elder brother. When confronted with police statement (Exhibit D-6), he failed to clarify why this fact was not stated by him to the police. Apparently, he is making aggeration over his previous version. 26. The prosecution in this case has produced all those four persons, namely, Biharilal (PW-6), Shrilal (PW-9), and Sattar (PW-17), who were working in agriculture field of Sattar to harvest the crop of coriander. Apparently, he is making aggeration over his previous version. 26. The prosecution in this case has produced all those four persons, namely, Biharilal (PW-6), Shrilal (PW-9), and Sattar (PW-17), who were working in agriculture field of Sattar to harvest the crop of coriander. These witnesses are consistent in their version before the court that on their enquiry Chhotulal told them of the attack on his family but could not give the name of any of assailants except stating that certain unknown thieves had attacked them. Though Biharilal (PW-6) has been declared hostile, but learned Public Prosecutor did not seek permission of the trial court to cross-examine remaining two witnesses to get them declared hostile. The prosecution would therefore be bound by the testimony of their witnesses. The Supreme Court in Raja Ram, supra, held that testimony of such a witness cannot be sidelined as it would be binding on the prosecution and defence can rely upon such evidence. The Supreme Court in Javed Masood, supra, relying on its earlier judgment in Raja Ram, Supra, taking note of the fact that four of the prosecution witnesses were never declared hostile by the prosecution, though their evidence did not support the case of the prosecution, but rather supported the defence, held that there is nothing in law that precludes the defence to rely on their evidence. The Supreme Court in Mukhtair Ahmed Ansari, Supra, was dealing with a case where the doctor, who was examined as a witness by the prosecution, stated that the deceased was being told by one K that she should implicate the accused or else the she might have to face prosecution, and the doctor was not declared ‘hostile’. While reversing the judgment of conviction passed by the High Court, the Supreme Court held that it was open to the defence to rely on the evidence of the doctor and his testimony was binding on the prosecution. Since Sattar (PW-12), Shrilal (PW-8) and Pratap (PW-9), to whom injured Chhotulal, as per his version in ‘parcha bayan’, had approached earliest in the morning, have deposed that he told them that some unknown thieves have attacked him and his family members, but he did not give name of any of assailants. The Public Prosecutor having not sought permission of the Court to cross-examine them and having not declared them hostile, the prosecution would be bound by their testimony. 27. The Public Prosecutor having not sought permission of the Court to cross-examine them and having not declared them hostile, the prosecution would be bound by their testimony. 27. No doubt, certain amount of credibility has to be attached to the testimony of injured eyewitnesses but this would depend on the quality of evidence that they give. The fact the accused were not named in any of the information given to the police at earliest point of time i.e. Rapat No. 608 (Exhibit P-42A), Rapat No. 632 (Exhibit P-44A) and lastly ‘parcha bayan’ (Exhibit P-33), wherein only a doubt was expressed by injured Chhotulal. Narain Singh (PW-20), who recorded ‘parcha bayan’ of Chhotulal, has not alleged that any of the accused was named by Chhotulal therein. In this scenario, we have to subject the testimony of even injured witnesses to greatest amount of circumspection and before relying on the same, we have to look for sufficient corroboration whether the appellants were actually assailants or whether they have been implicated only on the basis of suspicion. Such suspicion of the complainant is founded on allegation of rape, which Kalawati is said to have made against deceased Ram Ratan in the FIR lodged against him, and also in view of the fact that in the evening of the fateful day, the accused were seen participating in a feast on the ‘chabutra’ (platform) of the house of accused Mohanlal, where they were allegedly consuming liquor and meat, and using abusive language for the family of Chhotulal and threatening to liquidate them. But then, suspicion howsoever strong it may be, cannot take the place of truth. The conviction has to be based on legal evidence. Testimony of prosecution evidence in the present case not only does not find any corroboration but independently also it does not inspire much confidence. All the three injured eyewitnesses have alleged that various ornaments of gold and silver, which were wearing by them, were snatched by the accused but none of these articles have been recovered. Chhotulal, in his ‘parcha bayan’, alleged that Rs.2000/- lying in his pocket, were looted by the accused but that amount has also not been recovered. Chhotulal himself could not appear in the witness box as he died about 12 months after the incident. Chhotulal, in his ‘parcha bayan’, alleged that Rs.2000/- lying in his pocket, were looted by the accused but that amount has also not been recovered. Chhotulal himself could not appear in the witness box as he died about 12 months after the incident. Accused-appellants were not named as assailants in the ‘parcha bayan’ of Chhotulal, but for the first time injured eyewitnesses, namely, Kailash Bai (PW-1), Kastoori Bai (PW-3) and Ramdhani Bai (PW-10), by way of afterthought, in their police statements (Exhibit D-1 and Exhibit D-3) recorded belatedly on 29.04.1999, 22.04.1999 and 06.07.1999, respectively, have sought to implicate their names on the basis of suspicion because they suspected that it could be the accused who might have committed the offence. 28. The evidence otherwise on record indicates that it was a pitch dark night and even the prosecution witnesses have sought to explain this by stating that accused Kalawati had a torch, with the help of which she was guiding and instigating other accused to attack them. The investigating officer, in his statement, has admitted that he did not indicate any electricity pole in the site plan and further that there was no source of light but he allegedly stated that it was a full moon light and that the accused had torch but at the same time it was also admitted that no torch could be recovered. 29. Although the investigating officer prepared information memos with regard to information given at the instance of the accused under Section 27 of the Evidence Act, none of the weapons of offence has been recovered by the prosecution. All these information given by different accused under Section 27 of the Evidence Act. Exhibit P-51 is memo of information prepared on the basis of information given by accused Mohanlal about one ‘kulhari’, but interestingly what is recorded therein is that the accused gave the information to the investigating officer that he had given one ‘kulhari’ to his brother Prem, which he could get recovered from him. Exhibit P-52 is memo of information prepared on the basis of information given by accused Bajranglal about ‘kuntiya’, in which too it is stated that accused informed that he gave one ‘kuntiya’ to Prem, brother of accused Mohan, which he could get be covered. Exhibit P-52 is memo of information prepared on the basis of information given by accused Bajranglal about ‘kuntiya’, in which too it is stated that accused informed that he gave one ‘kuntiya’ to Prem, brother of accused Mohan, which he could get be covered. Exhibit p-53 is memo of information prepared on the basis of information given by accused Raju @ Rajendra about one ‘lakdi’, in which too, it is recorded that he gave one ‘lakdi’ to Heeralal, brother of accused Mohan, which he could get recovered from him. Similarly, Exhibit p-54 is memo of information prepared on the basis of information given by accused Chaturbhuj about one ‘lakdi’, wherein it is recorded that he gave one ‘lakdi’ to Heeralal, which he could get recovered from him. Exhibit p-55 is memo of information prepared on the basis of information given by accused Ramdayal about one ‘lakdi’, wherein it is recorded that he gave one ‘lakdi’ to Prem, which was lying in his house, which he could get recovered. All these information memos have thus been prepared in a very strange manner, where all the accused are uniformly shown to have entrusted weapons to some other person. And still more strange is the fact none of the weapons could be recovered by the police. 30. Adverting now to the relevant precedents, the Supreme Court in State of Punjab v. Ajaib Singh and Others, supra, was dealing with a case where murder of five members of a family had taken place at midnight in a village. Accused were closely related to deceased. Trial court convicted the accused for offence under Sections 148, 302 and 302/34 IPC and sentenced them to death. The High Court in appeal, acquitted the accused of the charges. The State of Punjab preferred appeal by special leave against the judgment of the High Court. The prosecution produced two eyewitnesses, who claimed that they were sleeping on two separate cots on the roof of the house from where the incident was visible. The High Court did not believe their presence on the place of occurrence because while one of them was resident of another village and another one was studying in a school of another village and another one was studying in a school of different village, where he resided with his grandmother. The High Court did not believe their presence on the place of occurrence because while one of them was resident of another village and another one was studying in a school of another village and another one was studying in a school of different village, where he resided with his grandmother. The wooden staircase leading to the rooftop and the cots were not shown in the sketch plan. Owner of these two witnesses was informant and the High Court noted that his testimony did not find corroboration because in the first information report he had named only three assailants, but in the course of deposition before the court he has alleged that there were six assailants, which included all five brothers and their associate. Similar improvement was made by another witness, who named only three assailants in the course of investigation but later sought to implicate three more. The High Court also noticed several inconsistencies between the evidence of these two witnesses. One of the witnesses, who was admittedly present in the house where the occurrence took place, was not examined and this fact also heavily weighted with the High Court. The High Court has also commented upon the recovery of weapons allegedly made at the instance of the accused and noticed the fact that the alleged disclosure statements were not supported by the evidence of any independent witness and even the serologist report did not give any clear opinion about the origin of the blood allegedly found on the weapons. The High Court held that the motive suggested by the prosecution did not appear to be a sufficient motive for the respondents to commit such a ghastly offence. The Supreme Court upheld the judgment of the High Court by holding that view taken by the High Court was reasonable view and fully supported by evidence and hence did not deserve to be interfered with in appeal of the State. 31. The Supreme Court in State through Central Bureau of investigation v. Mahendra Singh Dahiy - (2011) 3 SCC 109 , was dealing with a case where husband was suspected to commit murder of his wife on first night of honeymoon trip in Brussels. Though the husband explained that wife herself left him in the morning following honeymoon night. 31. The Supreme Court in State through Central Bureau of investigation v. Mahendra Singh Dahiy - (2011) 3 SCC 109 , was dealing with a case where husband was suspected to commit murder of his wife on first night of honeymoon trip in Brussels. Though the husband explained that wife herself left him in the morning following honeymoon night. Dismembered parts a body and a severed head were found next day in a rubbish container about 200 meter away from hotel. Torso was also recovered after two months from a lake, which was 17 minutes walk from hotel. The accused was tried for the offence in India. The trial court convicted the accused husband but the High Court acquitted him of the charge. The State through Central Bureau of Investigation filed appeal before the Supreme Court with leave of the court. The Supreme court, on through examination of prosecution evidence, held that the High Court was right in acquitting husband because circumstantial evidence was not consistent with husband’s guilt. In those facts, the Supreme Court, in para 24 of the report, has as under- “We have examined the submissions made by the learned counsel for the parties, particularly keeping in view the gruesome nature of the crime and the complexities presented in the investigation, as also at the trial of this particular case. Undoubtedly, this case demonstrates the actions of a depraved soul. The manner in which the crime has been committed in this case, demonstrates the depths to which the human spirit/soul can sink. But no matter how diabolical the crime, the burden remains on the prosecution to prove the guilt of the accused. Given the tendency of human beings to become emotional and subjective when faced with crimes of depravity, the courts have to be extra cautious not to be stayed by strong sentiments of repulsion and disgust. It is in such cases that the Court has to be on its guard and to ensure that the conclusion reached by it are not influenced by emotion, but are based on the evidence produced in the Court. Suspicion no mater how strong can not, and should not be permitted to, take the place of proof. Therefore, in such cases, the Courts are to ensure a cautious and balanced appraisal of the intrinsic value of the evidence produced in Court.” 32. Suspicion no mater how strong can not, and should not be permitted to, take the place of proof. Therefore, in such cases, the Courts are to ensure a cautious and balanced appraisal of the intrinsic value of the evidence produced in Court.” 32. The genesis of the incident, in the present case, appears to have been completely withheld from the court or could not be brought before the court due to faulty investigation. Therefore, this court is inclined to uphold the contention of the defence that it was blind murder case, which the police was not able to crack. The accused have been proceeded against only on the ground of suspicion, which is sought to be accused is lodgment of first information report by accused Kalawati against deceased Ram Ratan on allegation of rape. Additionally, it is also alleged that accused had abducted Taruvanta, daughter of chhotiya, resident of same village, who was recovered from accused Mohan Lal and Ram Singh alcer about one-and-a-half-month. It is also alleged that the accused were seen taking part in the feast organized in the house of accused Mohan Lal in the evening of the fateful day. Some of the prosecution witnesses have been made to say that accused were taking liquor and were heard abusing Chhotulal Patel and his family and also threatening to liquidate them. Such motive by itself does not furnish proof of complicity of the accused-appellants in the crime and the evidence otherwise does not prove that it were the accused and the evidence otherwise does not prove that it were the accused and none else, who may have committed the murder. The guilt of the accused-appellants in the present case on the basis of evidence therefore cannot be held to have been proved beyond reasonable doubt. 33. It is trite that howsoever grave the alleged offence may be, suspicion, no matter how strong, cannot take the place of legal proof. It is the mandate of law that the prosecution in order to succeed in a criminal trial, has to prove the charge beyond all reasonable doubt. If two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. If two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The burden always lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. While dealing with the case of this nature, the courts have to be extra cautious not to be swayed by strong sentiments of repulsion and disgust. It is in such cases that the Court, on its guard, has to ensure that the conclusion reached by it is not influenced by emotion, but are based on cogent and reliable evidence, which is acceptable in law. 34. In our considered opinion, evidence produced by the prosecution falls short of proof beyond reasonable doubt to bring home the guilt of the accused-appellants. It would be highly unsafe to sustain conviction of the accused-appellants the kind of evidence that has been adduced in this case. All the accused-appellants, in our view, are entitled to benefit of doubt. All the four appeals filed by the accused appellants, therefore, deserve to succeed and are accordingly allowed. Conviction and sentence of accused appellants, therefore, deserve to succeed and are accordingly allowed. Conviction and sentence of accused appellants, namely, Kalawati, Madanlal, Raju @ Rajendra, Mohan Lal and Ram Singh, is set aside. They are acquitted of the charges levelled against them. Appellant Kalawati (Appeal No. 590/2015) is in jail for last about more than eleven years and eight months, and she be set at liberty forthwith if not required in any other case. Appellant Madan Lal (Appeal No. 630/2015), appellant Raju @ Rajendra (Appeal No. 704/2015) and appellants Mohan Lal and Ram Singh (Appeal No. 828/2015), whose sentences were cospeaded by this court vide order dated 08.10.2015 on their applications for suspension of sentence, are on bail and they did not be surrendered. Their bail bonds stand discharged. 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 Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months. In the event of filing of Special Leave Petition of six months. In the event of filing of Special Leave Petition of six months. In the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Supreme Court.