JUDGMENT : G.R. MOOLCHANDANI, J. 1. Appellants Ratanlal son of Gangabux, Jhabar Singh son of Kalurarn, Ratan Singh @ Ratanaram son of Isarram @ Ishwar Singh and Shanti Lal son of Choturam have preferred instant DB Criminal Appeal against judgment dt 13.9.1993 passed by Additional Sessions Judge, Sikar in Sessions Case No. 25/1987 (40/1987) convicting and sentencing the accused appellants as under:- U/s 302/149 of IPC Life imprisonment with fine of Rs. 500/-, in default further to undergo two months simple imprisonment. U/S. 147 of IPC Six months rigorous imprisonment with fine of Rs. 100/-, in default further to undergo fifteen days simple imprisonment U/Sec. 148 of IPC One year rigorous imprisonment with fine of Rs. 200/-, in default further to one month simple imprisonment, All the sentences have been ordered to run concurrently. 2. U/S. 147 of IPC Six months rigorous imprisonment with fine of Rs. 100/-, in default further to undergo fifteen days simple imprisonment U/Sec. 148 of IPC One year rigorous imprisonment with fine of Rs. 200/-, in default further to one month simple imprisonment, All the sentences have been ordered to run concurrently. 2. Perusal of record goes to reveal that Exhibit-P9 Written Report, which has been lodged by Indar Singh on 16.5.1987, reads as under:- ^^lsok esa] Jheku Fkkukf/kdkjh egksn;] Fkkuk lnj lhdj fo"k; & dRy ds laca/k esa egksn;] eSa rklj NksVh dk fuoklh gaw dy jkf= dks esjs firkth dh ?kj ij /kkjnkj gfFk;kj ls dy jkr dks dRy dj nh x;h gSA eSa fnukad 14-05-1987 ls ,lŒdsŒ vLirky lhdj esa gwaA D;ksafd esjh L=h ds fMysojh gksus okyh gS blfy, HkRrhZ djok j[kk gSA esjs lkFk f=yksd iq= Jh :}kjke fuoklh rklj NksVh Hkh vLirky esa esjs lkFk jg jgk gSA eq>s vHkh djhc 10%30 cts xkao ds ikyflag iq= Jh cyoar flag] xqekukjke iq= Jh :Mkjke] eqdukjke iq= Jh fdluk jke tkV vkfn vknfe;ksa us vkdj vLirky esa vkdj bryk fd jkr dks 2%30 cts ds djhc esjs ikl vLirky esa ¼1½ jruk iq= xaxk cDlk fuoklh rklj NksVh ¼2½ >kcj tkV fuoklh <kdk dh <kf.k vkSj rhu vU; O;fDr vLirky esa vk;s vkSj dgk fd vkids cgukbZ ds ikl fdlh dke ls pyuk gSA dkj ysdj vk;s gS vHkh okil nsaxs esa ugha x;k blds ckn djhc 10&15 fefuV ckn buesa ls ,d yM+dk vk;q djhc 20&21 o"kZ esjs ikl ,d iphZ ysdj vk;k ftlesa vaxzsth esa nokbZ fy[kh gqbZ Fkh vkSj dgk fd MkDVjuh us vLirky ds fiNokM+s dh nqdku ls nokbZ eaxokbZ gSA rks eSaus ckn esa MkDVjuh ls iwNk fd D;k nokbZ eaxkbZ gSA D;k rks mUgksaus dgk fd eSaus rks ugha eaxokbZ blfy, nokbZ ykus ds fy, ugha x;kA xkao okyksa ls ;gka Hkh irk pyk gS fd ?kj esa pkj ikap vknfe;ksa ds [kkst iM+s gSA tks <ds gq, gSA edku ds ikl gh xzke rklj esa tksgM+s ds vUnj Hkh ml dkj ds Vk;jksa ds fu'kku gSA vkSj pkj ikap vknfe;ksa ds iSjks ds [kkst gSA tks ?kj ds iSjks ds feyrs tqyrs gSA fiNys pkj ikap eghus ls jruk ds ifjokj ds lkFk gekjh jaft'k gSA eqdnesa ckth pyrh gSA blfy, xbZ jkr ds fdlh le; esjs firk fd fd'kukjke dh dRy jruk oxSjg us dh gSA jruk o >kcj ds lkFk ckdh rhuks dks ns[kus ls igpku ldrk gawA eq>s ;g Hkh ekywe gqvk gS fd jruk us dy fnu esa geksj xkao ds jkes'oj iq= Jh ekykjke tkV dks ;g dgk fd fd'kuk o bUæ dk dkVk fudky nsaxsA eSa fjiksVZ is'k dj vtZ djrk gaw fd mfpr dk;Zokgh djds nks"kh vijkf/k;ksa dks fxjrkj djs vkSj esjs firkth dh yk'k vc Hkh ?kj ij [kwu ls yFkiFk ekapk ij iM+h gS vkSj lkFk esa iphZ tks vLirky esa nokbZ dh nh Fkh cqykus ds fy, is'k ds fy, is'k gSA dk;Zokgh djus dh d`ik djsaA rkjh[k 16-05-1987 ,lMh@& bUæflag iq= fd'ku jke tkV fuoklh rklj NksVh ftyk lhdjA** 3. On the basis of above Written Report formal FIR No. 53/1987, Exhibit-P12, was registered at Police Station Sadar, District Sikar for the offences punishable u/s. 147, 148, 149, 302 of IPC. 4. During the course of the trial, one of the accused persons Jhabar Singh; died, so the proceedings were dropped qua him and during the pendency of appeal, one of the co-accused person Shanti Lal S/o Choturam has expired, so appeal qua appellant accused Shanti Lal was also pronounced as having abated, thus the instant appeal is being adjudicated for surviving rest of the two accused persons, namely appellants Ratanlal and Ratan Singh @ Ratnaram. 5. Prosecution produced twenty-six witnesses before the learned trial Court subsequently to which, the accused persons were examined under the provisions of sec. 313 of Cr.P.C. and were confronted with the incriminatory circumstances and the appellants also produced one witness, DW-1 Jagan Singh, in defence evidence. 6. Learned trial Court, after hearing and appreciating the evidence, convicted and sentenced all the accused persons with the aforesaid sentence. 7. Aggrieved against the judgment impugned, present petition has been preferred. 8. Scrutiny and evaluation of the evidence reveals that the prosecution witnesses have stated the circumstances upon which the case of prosecution is based but no such crucial and clinching evidence has been adduced by the prosecution to prove the circumstances in league to prove the case. 9. PW 1 Surja Ram is a witness of Panchayatnama Exhibit-Pi. PW 2 Partu Ram has turned hostile and did not support the version of delivery of driving license of accused Baluram to the police. 10. PW 3 Ganpat Ram is witness of Exhibit-P3, arrest memo of Jhabar Singh, in cross-examination he has said that he was working in kitchen, when thanedar sahab asked him to sign by saying that accused have been arrested. 11. PW 4 Heeraram has stated that police had drawn map of deceased Kisnaram's house, he has further stated that he is so unable to say whether factual aspects were taken r not, but police had taken his thumb impression on few e is not aware whether blood-stained earth was taken or not, he is not aware that cot of the deceased was seized or not, one blood spotted blanket and wearing of the deceased were taken, he too has been declared hostile. 12. 12. PW 5 Karnaram has stated that Baluram Jat had consigned driving license to thanedar. sahab vide Exhibit-P2 which bears his signatures. 13. PW 6 Indar Singh son of deceased Kisnaram, though not an eyewitness has deposed that important aspect by saying that on 14.5.1987 he, his mother and, Triloka son of Ruda had brought his wife to S.K. Hospital, Sikar for delivery. 14. On 15.5.1987 at about half past two, midnight, Ratanlal son of Gangabux, Jhabar Singh of Dhaka Ki Dhani, came to him alongwith three unknown persons, who were not known to him, Ratanlal said that they were visiting Molyasi to meet brother-in-law (Behnoi) of the deponent and asked him to accompany and said that they had come by car, so will leave him back, he replied that since his wife was not well, so he won't be accompanying, then they left. 15. Ten to fifteen minutes later one amongst the three, who were with Ratanlal, came with a medicine prescription slip and asked him that hospital doctor had prescribed the medicine, he told him that let it be confirmed from duty doctor, he after uttering matter be enquired, went away outside. 16. He has further stated that on enquiring from duty doctor, she declined having prescribed the medicine, then he went to the ward and informed everything to his mother and conveyed Triloka in the morning as well and stated that half past ten in the day Pal Singh son of Balwant Singh, Ratnaram son of Kisnaram, Gumana Ram son of Ruda, his villagers came to him in the hospital and informed that somebody had murdered his father overnight. They also informed that foot-prints of five persons were there in the house, which were covered and protected, they also said that similar footprints were also there in the village Johdi (dry pond) and signs of car tyre were also there at Johdi of the village, they also informed that on 15.5.1987 they had met with Rameshwar son of Mala at Salasar stand and they were saying that they will remove the thorn of Indar and his father tonight. He has further stated that he and Ratna were nursing grudge against him, Ratna often thrashed his father and cases were pending against him and has further stated that Ratna and other accused persons have killed his father. 17. He has further stated that he and Ratna were nursing grudge against him, Ratna often thrashed his father and cases were pending against him and has further stated that Ratna and other accused persons have killed his father. 17. He has further stated to have lodged Exhibit-P9, report, which bears his signatures and Exhibit-P10 is the said prescription slip, which was given by that unknown person and has corroborated Exhibit-P1 Panchayatnama, Exhibits-P4 and P11 spot-maps and has further stated that Police had taken sample of soil, which was sealed vide Exhibit-P6 and a blood stained bedding [gudra] was also taken from the place of the occurrence vide Exhibit-P7 and blood stained cot was also taken vide Exhibit-P8 and all these Exhibits contain his signatures, Exhibit-P12 is FIR and receipt of consignment of body is Exhibit-Pi 3, vide Exhibit-P14 an iron pipe was recovered at the instance of Ratanlal and map of recovery of pipe is Exhibit-P15, txhibits-P16 and P17 pertains to test identification parade, in cross-examination he has also stated that he and Trilok were sleeping in the Hospital Chowk but he did not inform Trilok after awaking him in respect of the visit of accused persons to hospital, he has also stated that his statements were taken by. Police two to three days later to the incident but perusal of police statement of Indar Singh, Page No. 4A/64 of the record, depicts that same had been recorded in lieu on 16.5.1987, whereas police statements of Rameshwar were recorded on 19.5.1987 vide Ex. P/40. In cross-examination, PW 6 Indar Singh has also stated that he does not know, footprints of the villagers, Trilok son of Rudaram was with him in the hospital, lie has further stated that on 24.11.1980 his father had lodged a case of beating against Sheoji, Nathu, Panna, Ganesh and in 1987 Nathu had lodged a case against his father and Jamni his mother, regarding beating, he has also stated that he is unaware that the accused persons were brought to the Village for recovery of Laths, prior to their identification, this averment makes the identification unbelievable, he has also stated that Ratan was living in Merta but since which time and he is unaware that he would be plying truck. 18. 18. PW 7 Shivbhagwan is a witness of Exhibits-P14 and P15 pertaining to recovery of Iron pipe on the instance of accused Ratanlal, in cross-examination he has said that it was noon time, place of recovery was an open house of Chhapar made of Chhan, he has also admitted that in the house of Ratan, his brother Nathu another family members also live together and that pipe was of about three feet. Narration of recovery of pipe is not stated precisely that the accused led him to some place and on his instance alleged pipe was recovered, which was hidden there and the signatures of the witnesses were taken, which is obviously a flaw and makes the recovery doubtful. 19. PW 8 Bhagwani has stated that Indar Singh was her "Devar" (brother-in-law)-, Jamni is her mother-in-law, Jamni and Indar Singh had gone to hospital, when her father-in-law (Sasur) was killed, since her sister-in-law was to deliver and was hospitalized, she has further stated that she, her Nanad (sister-in-law) Kistoori and her Sasur, Kisnaram were there in the; house and her husband was away to Bikaner on service. She has further stated that about four years back her father-in-law (Sasur) was sleeping in the Guwadi, she and Kistoori were sleeping in Angan, because of cold, she went inside the room to sleep, before sunrise in the morning, when her Nanad Kistoori got up, then she saw that her Sasur was lying dead there, on cry of Kistoori, she also went there and saw injuries on the head, hand and other parts of the body of her Sasur, his clothes were smeared with blood, on their cries, villagers Pal Singh, Muknaram, Gumana Ram also came there, they also saw the body and the foot-marks. 20. She has also stated that she did not hear any sound in the night since she was sleeping in the room. 21. 20. She has also stated that she did not hear any sound in the night since she was sleeping in the room. 21. A rivalry was there with accused Ratanlal and cases were also pending, in cross she has stated that their Poli does not have doors and about seven to eight feet away from the Poli her *** (father-in-law) was sleeping in the Chowk and ahead of him, they were sleeping, she has also stated that she was sleeping few steps away from her Sasur but Doli was there in between, which is about four to four and a half feet high and there are doors in Doli but it is not roofed, they were sleeping on the cot and they went inside the room, when night advanced, room was also not much away, she has also stated that the night was cold and it was not hot, this is why, they had gone inside for sleeping. 22. Obviously, the incident belongs to the month of mid of May, which cannot be said to be cold and would certainly be bit hot, in view of the month of mid of May, as such assertions made by this witness, in respect of the reason that the night was cold, so she gone inside the room to sleep, is not safe to be relied on its face value. Be it as it may, she is not an eye-witness. 23. She has also stated that her Sasur was sleeping seven to eight feet away from her, when they went inside the room, they did not take care of her Sasur, she has also stated that she cannot say as to at what time her Sasur was killed. Be it as it may, she is not an eye-witness. 23. She has also stated that her Sasur was sleeping seven to eight feet away from her, when they went inside the room, they did not take care of her Sasur, she has also stated that she cannot say as to at what time her Sasur was killed. One unbelievable has also been stated by this witness that Parsaram, who is her elder father-in-law and resides adjacent, was not informed and they did not go to inform him, she has also stated that enmity was persisting between Parsaram and their family, on their cry, Pal Singh, Muknaram and Gumana Ram all three came together, later several villagers gathered, she has also stated that her father-in-law was not having good relations with Nathu, Sheoji and disputes were there with them and Police had come in the noon, she cannot say that prior to visit of the Police, Indar Singh would have visited to their residence, she has further stated that she was interrogated by the Police that very day. 24. Testimony of this witness reveals that deceased Kisnaram was nurturing rivalry and enmity with so many persons, even he was having inimical relations with his elder brother "Parsaram" and it is also unbelievable that in mid of the month of May, when summer and hot breeze is there, how the weather allegedly turned cold, which constrained Bhagwani and Kistoori to go inside the room for night sleep in mid of the night without even taking care of their elder Kisna Ram, It is also not trustworthy, as to why they both did not hear entry sound of alleged; assailants, who allegedly killed Kisnaram by brutal assaults shrieks and sound would have certainly erupted, at the time of alleged assault, so testimony of this witness is highly doubtful. 25. PW 9 Kistoori has almost given her evidence in consonance with testimony of her sister-in-law PW 8 Bhagwani, while stating that the incident belongs to quarter to four, her father was killed by Ratnaram and others, she has specifically said that they did not hear any kind of sound in the night, in cross-examination she has stated that she did not: witness foot-marks, she has stated that Indar Singh was summoned and called by Palji and Muknaram and Police had visited in the noon. She has also stated that Police had brought witnesses in the village about half past- two in the noon, initially they had brought Jhabar. This witness is also not an eye-witness. 26. Appraisal of testimony of this witness also shows that she too has said that in the night, it became cold and she did not hear any kind of sound in the night, which is obviously unbelievable because in the month of mid of May, weather becomes hot in Rajasthan and one cannot view that it became cold, which constrained, open area sleeping inmates to retire inside the room, moreover she has also stated that she did not hear any sound, which too is unbelievable because two woman folk, sleeping in close proximity of the deceased, did not hear sound of anybody's movement, assault, shriek, beating, leaving or even witnessing the incident, since individuals sleeping eight to ten feet away from deceased would certainly witness the incident or hear something abnormal. Name of Ratnaraim is obviously alleged, on the basis of surmises and for the reason of alleged hostility but it is an admitted position that deceased was having hostility with so many persons, even as per say of Bhagwani, Parsaram elder brother of the deceased, was also inimical with the deceased and they were even not in such terms that the mishap could have been communicated to his real brother Parsaram, so gravity of their twisted inimical relations could very well be assumed and in such a situation, when a person would be nurturing hostility with various individuals, even with his next door brother, then allegations against a far residing individual, becomes doubtful and less creditworthy. 27. PW 10 Abdul Gani, ASI, has stated that initially investigation was given to him and he had arrested Jhabar Singh and Shanti Lal vide Exs.-P18 and P19. 28. PW 11 Gulam Nabi, Police Head Constable and posted as Head Mohrir, has stated about seizure of samples and blood stained cot and arms of the cot with foot-prints and wearing clothes, but he has not proved the Exhibits and has stated that on 27.8.1987, samples were sent through Constable Ramniwas to FSL Jaipur, he has also stated that signatures of Ramniwas were not taken in the register, which too appears to be abnormal. 29. 29. PW 12 Smt. Archna Jain, a doctor, has stated that Exhibit-P10 was not written by her and on that night, Dr. Nirmal Ajmera had called her for delivery, when Exhibit-P10 was shown to her, then she expressed that it was not written by her. This witness has stated an important that Exhibit-P10 slip, was not shown to her by any relative of the patient: and it was "shown by the Police and after showing it, she was interrogated, as such, testimony of Indar Singh (PW 6) also looses its importance and worth because he has said that when slip was given to him by the stranger in the night, then he went with the slip and after showing it to duty doctor, enquired about the prescription, which was allegedly declined by duty doctor that it: was not written or prescribed by her because Dr. (Smt.) Archna Jain has categorically stated that the slip was not shown to her by any relative of the patient but it was police, who interrogated her after showing slip Exhibit-P10, it also impinges adverse upon the evidence of the prosecution not being reliable. 30. PW 13 Dr. Nirmal Kumar Ajmera has stated that on that night of 15.5.1987, Dr. Archna Jain was called for a delivery case and Exhibit-P10 slip, was shown to her by the Police and it was communicated by her that said slip, was not written by her, in cross-examination he has further stated that Exhibit-P10 was once shown by the police only. 31. PW 14 Dr. Vinod Choudhary, who conducted autopsy on the body of deceased Kisnaram son of Dungaram, has stated that following seven injuries were found on the body of deceased vide Exhibit-P21:- (a) Lacerated wound 7 cm x 2 cm x bone deep; From frontal to temporo parietal region of skull on right side - oblique (b) Lacerated wound on right Pinna of ear about 2 cm long (c) Lacerated wound on right mastoid area 2 cm x 1cm x bone deep; vertical in direction (d) Lacerated wound 2 cm x 1cm x bone deep; oblique in direction, in lower 1/3rd of right arm - outer aspect (e) Lacerated wound 3 cm x 1cm x bone deep just above wound no. 4 (f) Bruise 3 cm x 2 cm on right thigh laterally in lower 1/3rd; (g) Bruise 2 cm x 2 cm mid frontal area of skull 32. This witness has also stated about four internal injuries, which were noticed as under in the post-mortem report:-' (a) Fracture of right side of skull, involving frontal, temporal and greater wing or sphenoid bone and middle cranial fossa - Ruptured at the site of fracture. Congested. Brain congestion, fracture of brain below the fracture with haematoma (b) Fracture of 3rd, 4th, 5th, 6th, 7th and 8th ribs on right side, anterolateral (c) Pleural - Ruptured on right side with collection of blood in right pleural cavity; left side normal (d) Right lung - laceration of upper and lower lobe present below fractured ribs. Blood is collected in right thoracic cavity size of laceration 5 cm x 1/2 cm x 1/2 cm 33. He has also stated that Humerus bone of right hand of the deceased was broken and right leg Femur was also found fractured from down side and the injuries were caused within twenty-four hours of the post-mortem and has opined that cause of death was shock due to laceration of brain and right lung and death had occurred eighteen to thirty-six hours before the post- mortem. He has further stated that injuries caused to the head and lungs were sufficient to cause death, in ordinary course of nature and has stated that Exhibit-P21 was drawn by him. 34. He has further stated that injuries caused to the head and lungs were sufficient to cause death, in ordinary course of nature and has stated that Exhibit-P21 was drawn by him. 34. PW 15 Trilok is a witness, stating that in the morning, was informed by Indar that Ratan Singh and Jhabar Mai with three persons had visited the hospital and had asked him to accompany to his brother-in-law to Molyasi and alleged fact pertaining to slip of prescription brought by an unknown person amongst them and has accepted his signatures on Exhibits-P22 and P23, in cross examination he has accepted that witness Gumana Ram is his real brother and witness Rameshwar is son of Malaram, Malaram and his father are real brothers and as such has accepted his relationship with the complainant party and has stated that Lathi had been recovered after three months from the date when he had slept in the hospital, as such this witness is also a relative witness and has not seen anything in respect of the offence, he has also stated that on 29.6.1987 Ratan Singh would have been brought to the village, he is unaware of, which mars the recovery. 35. PW 16 Sanwarmal is a witness of Exhibit-P22 Lathi, stated to be recovered at the instance of Ratan Singh and he has accepted his signatures on Exhibits-P22 and P23, in cross examination he has accepted that he did not witness the footprints and has also stated that prior to recovery, Police had brought Ratan Singh in the village, he has also stated that the recovery was made about two and a half to three months after the Panchnama and has further said that only spot-map was drawn before him, which makes the recovery doubtful, he has accepted his relationship with the complainant and has stated that Kisna was his grand-pa. 36. PW 17 Richpal is a recovery witness of Lath, made vide Exhibit-P24, P25 and P26 from Jhabar Singh and also recovery made on the instance of Shanti Lal vide Exhibit-P27, he has further verified and accepted his signatures on Exhibits-P28, P29 and P30, in cross-examination he. 36. PW 17 Richpal is a recovery witness of Lath, made vide Exhibit-P24, P25 and P26 from Jhabar Singh and also recovery made on the instance of Shanti Lal vide Exhibit-P27, he has further verified and accepted his signatures on Exhibits-P28, P29 and P30, in cross-examination he. has stated that he and Muknaram were called by the Police and they had stayed in Sikar overnight and Muknaram, his Chacha, was together, which indicate that the Investigating Agency has failed to take motbirs from the area concerned and instead relatives of the complainant side were brought from other place by the Police, who slept and remained there overnight and became motbirs of recovery, they are obviously relatives of the complainant, which makes the story of prosecution doubtful. 37. PW 18 Vinod Kumar Arya, Munsif Magistrate, has confirmed test identification parade vide Exhibits-P16, P17 and Exhibits-P34, P35, he has specifically said that accused persons had given him Exhibits-D2 and D3, which have been referred in the memo of identification parade Exhibits-P16 and P17, both Exhibits-D2 and D3 have got recitals that the accused persons were shown to the witnesses prior to the identification parade, which mars the credit of identification parade being indifferent. 38. PW 19 Pal Singh has stated that he had seen foot-prints at the place of occurrence, in cross examination he has accepted that he is unaware about the method of observing foot-prints, if somebody says, then he may observe, he has also said that the foot-prints were bleak and faded and he cannot say the size and dimension of the said foot-prints, he has also stated that Jagan Singh is his brother. 39. PW 20 Ganpatlal, Sub-Inspector; has stated that he was given investigation and on 12.8.1987, and had arrested Ratnaram son of Isar Ram vide Ex. P.38, he has also stated that charge-sheet was filed by him and a Lath was recovered from the possession of Ratan Singh vide Exs.-P22 and P23, in cross examination he has accepted that the Lath was not stained with blood. 40. P.38, he has also stated that charge-sheet was filed by him and a Lath was recovered from the possession of Ratan Singh vide Exs.-P22 and P23, in cross examination he has accepted that the Lath was not stained with blood. 40. PW 21 Rameshwar has stated that on 15.5.1987, he had gone to Sikar with some domestic work and was standing at Salasar Bus Stand at 6:30 P.M., Ratna and his cousin Jhabar alongwith three other persons met him there, he has further stated that he asked Ratna, the place of his plying truck, who replied that he drives Matador, he has further stated that Ratna uttered that he will "unplug the thorn of Indar and his father, who used to quarrel with his family members and has stated that he asked him to avoid trifles, which often happens in the village and shun from doing any untoward". Nothing was uttered by anybody else accompanying Ratna and has further stated that when he awakened in the morning, ruckus was there and Kisna was lying dead on the cot, in cross examination he has stated that Ruda is real brother of his father, he has further stated that he was interrogated by the police five days later, during this period neither he visited to the police authorities nor they approached to him, he too has said that he cannot say size and dimension of foot-prints and has stated that Ratnaram known to him being a villager, he has also said that said meeting, incident belongs to Private Bus Stand, several people were there at that time but none of the villagers met him there and has said that he had informed the tidings to Pal Singh in the morning, it has also been stated by this witness that identification parade was done about three months later to the incident, he has declined suggestions that: he would have been shown the accused persons, prior to their identification or would have not talked with Ratnaram. 41. Apparently, at a public place, where several persons are stated to be present, it is unbelievable that a villager would profess utterances of his evil motives that he would be assassinating certain villager because of disharmony, this witness is also not indifferent and is a relative of complainant side. 42. 41. Apparently, at a public place, where several persons are stated to be present, it is unbelievable that a villager would profess utterances of his evil motives that he would be assassinating certain villager because of disharmony, this witness is also not indifferent and is a relative of complainant side. 42. To utter or to make prophesy at a public place of certain evil, allegedly to be executed few hours later, which the maker commits overnight is evidently improbable and this kind of utterance appears to have been introduced to fasten liability to satisfy partisan motive. 43. PW 22 Danaram has stated that he was returning after watering his crop, he spotted a car near Johcli, none was there near the car and they returned back to the village, Ratna had met him near the house of Parsaram, he has accepted his signatures on Exhibits-P16 and P17 identification parade papers, in cross- examination he has stated that he is not aware about the colours of pant and shirt, which were worn by those persons and has stated that it is correct that way to his house passes through Harijan Mohalla and his field is near to the way of Sewa and Fagalwa. 44. As such to choose a long and a distant way to reach house is also doubtful, to witness anybody in odd hours, on the way, which is being uncommon, is also unreliable. 45. PW 23 Ramniwas, Constable, has stated that he had deposited seven packets in sealed condition with F.S.L. Jaipur vide Exhibit-P41. 46. 44. As such to choose a long and a distant way to reach house is also doubtful, to witness anybody in odd hours, on the way, which is being uncommon, is also unreliable. 45. PW 23 Ramniwas, Constable, has stated that he had deposited seven packets in sealed condition with F.S.L. Jaipur vide Exhibit-P41. 46. PW 24 Gumana Ram has stated that on hearing ruckus, he rushed to the house of Kisna,; where Kisnaram was lying dead in his Poli upon cot, this witness has also stated that Kisna's right leg and right hand were, broken, head had sustained injuries and injuries were there on right ear, blood was lying under the cot, wearings of the deceased were blood smeared and blood was also there on the cot, he has further stated regarding observation of footprints, this witness has explained brutal injuries, which were caused to deceased Kisnaram and he found right leg and right arm of the deceased broken, head having injuries, but it is strange that daughter and daughter-in-law of the deceased, who were sleeping in close proximity, did not hear any whisper or sound of shrieks, which would have naturally erupted at the time of alleged brutal beatings and assault, in cross-examination he has averred that his house is ten to twelve steps away from the house of Kisna, he has stated that he did not measure size of foot-prints, he has also stated unbelievable by saying that he, Muknaram and Palji had gone to see footprints from place of occurrence to Johdi, since the incident belongs to the month of May, which is a dry and hot weather, so detection of alleged footprints on a public place, up to a considerable distance, is also not believable, this witness is also not indifferent and has admitted his relationship with the complainant. 47. It is important to note that samples of foot-prints and their moulds have not taken in the presence of a Magistrate, as such theory of taking foot-moulds or foot-prints, becomes insignificant. 48. 47. It is important to note that samples of foot-prints and their moulds have not taken in the presence of a Magistrate, as such theory of taking foot-moulds or foot-prints, becomes insignificant. 48. PW 25 Muknaram has also deposed in same terms as PW 24 Gumana Ram, he has also: stated that families of accused Ratanlal and complainant Indar are inimical and have remained at daggers end, he has accepted his signatures on Exhibits-P1, P4 to P8 and has stated that a Lath was recovered from Jhabar Singh before him vide Exhibit-P24 and has further accepted his signatures On Exhibits-P25 to P32, P36, P37, P42 to P45, in cross-examination he has stated that his village is six to seven kms away from Palasiya and has stated that twenty to twenty-five days after the incident, recovery was made from Jhabar Singh and Shanti Lal from Johad and no recovery was effected from Palasiya, he has also uttered an unbelievable that recovery time could be of the evening or of the day and he is not aware about the time, which mars the credibility of the alleged recovery. 49. In cross-examination he has also accepted that he belongs to the caste of complainant, as such having brotherhood and consanguinity, it show that this witness is also a relative witness and not an independent witness. 50. PW 26 Badriram has stated that on 16.5.1987, a written report Exhibit-P9, was presented to him, he was posted as S.H.O. Police Station Sadar, Sikar on 16.5.1987 and has further narrated different facets of investigation and modus undertaken. 51. Defence has also produced one witness and this witness DW 1 Jagan Singh has stated that six years back, he did not yield crop jointly with Danaram son of Govinda Ram, nor he witness Ratnaram, allegedly while accompanying Danaram, he has also stated that fifteen to twenty clays before identification parade, the accused persons were shown to him and four to five days ahead of the identification parade, the accused persons were also shown to him at Police Station, in cross-examination he has further explained that four to five days ahead of the identification parade in jail, the accused were shown to him at Police Station. 52. Prosecution has not produced any creditworthy evidence to connect the accused persons with the crime. 52. Prosecution has not produced any creditworthy evidence to connect the accused persons with the crime. Obviously, the case of prosecution is based on circumstantial evidence but the circumstances are not explained and not well connected to establish the crime. 53. In Baijanath and Ors vs. State of Madhya Pradesh (2017) 1 SCC 101 , Apex Court has held that in the cases of deficiency of proof, benefit would be available to the person charged and in Narendra Singh and Anr. vs. State of M.P. (2004) 10 SCC 699 , Apex Court has recognised presumption of innocence as a human right and has observed that it is now well settled that benefit of doubt belongs to the accused, it is further trite that suspicion, however grave may be, cannot take place of a proof, it is equally well settled that there is a long distance between 'may be' and 'must be'. 54. Theory of giving a prescription slip has collapsed, since both the doctors have stated that alleged prescription slip was not shown to them by anybody except by police, which had interrogated after showing the slip, whereas Indar has stated that he was given a slip by a stranger and he went to doctor, who allegedly declined that same was not written by him/her. Recovery of Laths has also not been proved properly. 55. Admittedly deceased was sleeping in his house, where his daughter Kistoori and daughter-in-law Bhagwani were sleeping beside and there was a distance of eight to ten feet between them, but prosecution has failed to give evidence as to why they did not hear any sound of movements, shrieks and brutal beatings, which were allegedly given to the deceased, whose body was found fractured and head sustained serious injuries. 56. It is imperative that in cases of circumstantial evidence it is necessary to prove all the circumstances, well linked and chained, which prosecution has obviously failed to establish. 57. Positive material and clinching evidence, capable to saddle criminal culpability has not been produced by the prosecution, even the recovery of Laths is not established. 58. In Padala Veera Reddy vs. State of Andhra Pradesh (1989 Supp. 57. Positive material and clinching evidence, capable to saddle criminal culpability has not been produced by the prosecution, even the recovery of Laths is not established. 58. In Padala Veera Reddy vs. State of Andhra Pradesh (1989 Supp. (2) SCC 706), the Supreme Court has observed that in matters of circumstantial evidence, the evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 59. In Varun Choudhary vs. State of Rajasthan 2011 Crl.L.J. 675, it has been held that where chain of events is doubtful, no conviction can be based and it is settled legal proposition that in a case of circumstantial evidence, there must be complete chain of events, which would lead to a conclusion that the accused was the only person, who could have committed that offence and none else. In Musheer Khan alias Badshah Khan vs. State of Madya Pradesh (2010) 2 SCC 748 it has been observed that in cases of circumstantial evidence complete chain of circumstances must be looked and snapped or scattered links are not sufficient to convict the accused and in Sanatan Naskar & Anr vs. State of West Bengal 2010(3) R.C.R. (Cr.) 629 page (S.C.), it has been held that court below took a wrong view of the matter, while convicting the accused in a case, where chain of events of the case was not proved beyond reasonable doubt and in Jiten Besra vs. State of West Bengal (2010) 2 S.C.C. (Cr.) 438 : 2010(3) RLW 2177 (SC), and in Kamla Devi vs. State of Delhi 2012(2) J.C.C. 1457 (Delhi), the Supreme Court has observed that once it is found that circumstance could not point out towards guilt of accused, without any other inference being probable, the accused must get the benefit of doubt. 60. In a recent law as laid down in H.D. Sikand (D) Thro's Lrs vs. Central Bureau of Investigation & Anr. 2017 Cr.L.R. (SC) 58, the Supreme Court has held that if the offence is not established and the prosecution fails to prove the offence beyond reasonable doubt, then order of acquittal is justified. 61. Adverting upon the afore-discussed evidence, we are of considered view that learned trial Court fell in error, while holding the accused persons guilty of the offence and appellant accused persons, deserve to be acquitted. 62. Thus, the appeal succeeds and finding of the court below is set aside, both the accused appellants Ratanlal son of Gangabux and Ratan Singh @ Ratanaram son of Isarrarh @ Ishwar Singh, are acquitted from the charges for the offences u/s. 147, 148 and 302/149 of IPC. 63. Let record of the learned trial Court be transmitted back immediately with a copy of the judgment. 64. Learned trial Court is directed to call the accused respondents for compliance of sec. 437A of Cr.P.C.