JUDGMENT Hon’ble Harsh Kumar, J.—This appeal has been filed against the impugned judgment and order of conviction dated 24.5.1988 passed by Additional District and Sessions Judge/Special Judge, E.C. Act, Jhansi in S.T. No. 115 of 1985, State v. Lalloo @ Pahalwan Singh and others, Case Crime No. 32 of 1985, P.S. Raksa, District Jhansi under Section 302 IPC. 2. JUDGMENT Hon’ble Harsh Kumar, J.—This appeal has been filed against the impugned judgment and order of conviction dated 24.5.1988 passed by Additional District and Sessions Judge/Special Judge, E.C. Act, Jhansi in S.T. No. 115 of 1985, State v. Lalloo @ Pahalwan Singh and others, Case Crime No. 32 of 1985, P.S. Raksa, District Jhansi under Section 302 IPC. 2. The brief facts relating to the case are that one Pancham Singh lodged F.I.R. on 3.6.1985 at 4:00 a.m. stating therein that “he resides at the place of his brother-in-law ( lknqtkr HkkbZ ), Bhagwan Singh in village Punavali Kalan; that Ratan Singh of Punavali Kalan was murdered, in which his brother-in-law Bhagwan Singh alongwith Majboot Singh and others were falsely implicated by Badam Singh and Lalloo @ Pahalwan; that due to above enmity Narayan Singh, the brother of Bhagwan Singh was murdered by Lalloo and his relatives about 8-10 years ago, but on trial they were acquitted; that due to above enmity yesterday on 2.6.1985 at about 8:40 p.m. when Majboot Singh was coming to his home and reached around the platform of Karasdev he was abused and chased near house of Lalloo @ Pahalwan and when he ran on way to his home, Punjab Singh chased and caught him infront of the door of Radhey Shyam Srivastava and when he fell down, Lalloo @ Pahalwan caused him injuries with bricks and stones and Punjab Singh by catching hold of him beaten with kicks and fists and they caused his death, which was seen by Mahaval Singh and others, who were threatened to flee by the accused-persons; that thereafter Lalloo and Punjab Singh went to the house of their elder brother Badam Singh, and then Punjab Singh, a Sepoy in R.P.F. reached at the door of Bhagwan Singh and asked for him, on which he called Bhagwan Singh for meeting with Punjab Singh and Punjab Singh by providing a cigarette to Bhagwan Singh, taken him to the platform of the house of his brother Badam Singh; that in the meantime, he and Pushpendra son of Bhagwan Singh came from behind and found that Lalloo @ Pahalwan armed with Pharsa and Mahendra @ Rajan with stones were standing on the way and smelling their bad intentions, asked Bhagwan Singh to come back; that as soon as Bhagwan Singh stood up to return, Punjab Singh caught his collar but he alongwith Pushpendra rescued him and all the three ran towards their home, however Punjab Singh armed with Pharsa caught Bhagwan Singh infront of house of Parmanand, Lalloo wielded Pharsa on him from behind due to which Bhagwan Singh fell down and these people caused multiple injuries to him with Pharsa and stones; that the accused chased him and Pushpendra, and when they were running Attar Singh, the elder brother of Majboot Singh also arrived and seen the incident, but due to fear he entered in the house of blacksmith Hardas and by the time he raised alarm and came back with neighbours and village people, all the three accused had fled away and Bhagwan Singh and Majboot Singh had succumbed to their injuries.” 3. On the F.I.R. lodged against Lalloo @ Pahalwan, Punjab Singh and Mahendra @ Rajan at Case Crime No. 32 of 1985 under Section 302 IPC, upon investigation charge-sheet was submitted and case was committed to sessions where the Additional Sessions Judge framed charges under Sections 302/34 IPC against Lalloo @ Pahalwan Singh and Punjab Singh for the murder of Majboot Singh on 2.6.1985 at 8:40 p.m. and charges of offences under Section 302/34 IPC against all the three accused Lalloo @ Pahalwan Singh, Punjab Singh and Mahendra @ Rajan for causing murder of Bhagwan Singh on 2.6.1985 at 9:00 p.m. Accused persons denied from the charges and demanded trial. 4. In order to prove its case, the prosecution produced Pancham Singh, first informant and eye-witness of the incident as P.W.1, Pusphpendra, son of deceased Bhagwan Singh and eye-witness of incident as P.W.2, Attar Singh, the elder brother of deceased Majboot Singh as well as eye-witness of incident of murder of Bhagwan Singh as P.W.3, with formal witnesses Dr. D. Saxena, who conducted the post mortem examination of the dead bodies of Majboot Singh and Bhagwan Singh as P.W.4 and Ram Lakhan Tripathi, the Investigating Officer as P.W.5. After completion of prosecution evidence, the statements of three accused-persons Punjab Singh, Lalloo @ Pahalwan and Mahendra @ Rajan were recorded under Section 313 Cr.P.C. but despite giving opportunity, they did not produce any defence witness. 5. Learned Additional Sessions Judge upon hearing both the parties passed the impugned judgment and order holding co-accused Mahendra not guilty of the offence under Section 302/34 IPC for committing murder of Bhagwan Singh, acquitted him and holding Punjab Singh and Lalloo @ Pahalwan not guilty of offence under Sections 302/34 IPC for committing murder of Majboot Singh acquitted them from charges of murder of Majboot Singh. However it found Lalloo @ Pahalwan and Punjab Singh guilty of the offences under Section 302/34 IPC for committing murder of Bhagwan Singh and consequently convicted each of them under Sections 302/34 IPC and sentenced each of them with life imprisonment. Feeling aggrieved with the impugned judgment and order of conviction and sentence of life imprisonment, the two convicts have preferred this appeal. During pendency of appeal, the appellant No. 2 Punjab Singh died and appeal in respect of him was abated. Now Lalloo @ Pahalwan is the sole surviving accused-appellant. Feeling aggrieved with the impugned judgment and order of conviction and sentence of life imprisonment, the two convicts have preferred this appeal. During pendency of appeal, the appellant No. 2 Punjab Singh died and appeal in respect of him was abated. Now Lalloo @ Pahalwan is the sole surviving accused-appellant. There is no State appeal against order of acquittal of appellants for the murder of Majboot Singh or against order of acquittal of co-accused Mahendra for the murder of Bhagwan Singh. 6. Heard Sri Rahul Misra, learned counsel for the appellants and Sri A.N. Mulla, learned A.G.A. for the State and perused the record as well as record summoned from Court below. 7. 6. Heard Sri Rahul Misra, learned counsel for the appellants and Sri A.N. Mulla, learned A.G.A. for the State and perused the record as well as record summoned from Court below. 7. Learned counsel for the sole surviving appellant Lalloo @ Pahalwan contends that sanctity of F.I.R. is doubtful, as it has been lodged ante timed; that the prosecution story is quite improbable and doubtful; that the scribe of the F.I.R. was neither produced before Court nor his statement under Section 161 Cr.P.C. was ever recorded; that the written report Exhibit A-1 appears to have been prepared subsequently on the basis of Chik F.I.R. Exhibit A-4; that the prosecution evidence is not reliable, as the prosecution witnesses of fact were inimical to the accused persons as well as related to the deceased and their statements were in contradiction to their statements under Section 161 Cr.P.C. and were also contradictory to each other; that the medical evidence does not corroborate the prosecution evidence; that the learned Sessions Judge has found the prosecution case false and unreliable in respect of alleged murder of Majboot Singh by appellants Lalloo @ Pahalwan and Punjab Singh (since deceased), and has acquitted them from the charges under Section 302/34 IPC for the murder of Majboot Singh; that the trial curt also found the prosecution case false and unreliable in respect of the participation of co-accused Mahendra @ Rajan in murder of Bhagwan Singh; that no appeal has been filed either by the first informant or by the State against acquittal of appellants Lallo @ Pahalwan and Punjab Singh for the murder of Majboot Singh as well as against the order of acquittal of Mahendra Singh @ Rajan under Section 302/34 IPC for murder of Bhagwan Singh; that since on the testimony of interested and partisan prosecution witnesses part prosecution story has been disbelieved, the other part of the story may not be relied on the same evidence and the entire prosecution story is liable to be disbelieved and thrown out; that the alleged incised wounds of deceased Bhagwan Singh do not appear to have been inflicted with Pharsa, rather appears to have been caused by some light sharp edged weapon like knife etc., as there was no bone cut underneath above incised injuries, which was quite natural in case of heavy Pharsa blows; that the body of Bhagwan Singh, deceased was found naked, which also speaks something else; that both the deceased Majboot Singh and Bhagwan Singh were history sheeters and used to commit offences of theft and dacoity in connivance with people of Kabootera Gang, they appears to have been brutally murdered with stones by persons of Kabootera Gang or some unknown persons in the darkness of night and since the real culprits could not be identified so on account of doubt and old enmity the appellant and his brothers Punjab Singh deceased and Mahendra @ Rajan have been falsely implicated; that the appellant and his brothers had no motive to cause death either of Majboot Singh or of Bhagwan Singh; that the learned Additional Sessions Judge has acted wrongly in relying on the untrustworthy and contradictory partisan evidence of interested and related prosecution witnesses, who were also inimical to accused-appellants; that the prosecution has failed to prove its case by any cogent, independent and reliable evidence beyond reasonable doubt and in any case the accused-appellants were entitled for benefit doubt as well as for an order of acquittal; that the impugned judgment and order of conviction is liable to be set aside and sole surviving accused appellant Lalloo @ Pahalwan Singh is liable to be acquitted. 8. 8. Per contra, Sri A.N. Mulla, learned AGA for the State supported the impugned judgment and order and contended that the F.I.R. has been lodged promptly naming the miscreants; that it is wrong to say that F.I.R. is ante-timed or the written report Exhibit A-1 was prepared subsequently on the basis of Chik F.I.R. Exhibit A-4; that the F.I.R. has been lodged by the illiterate villager in most natural manner without any deliberations or hide and seek; that non production of scribe of F.I.R. does not adversely affect the prosecution case; that it is wrong to say that the body of Bhagwan Singh was found naked, rather it is proved from the evidence on record that he was wearing vest (Baniyan) and Loincloth (Langot) as well as Tehmad, which is usual and usual dress of villagers particularly at night in the season of summers; that it is not disputed that previously for the murder of Ratan Singh, (brother of accused-appellants) Bhagwan Singh deceased and Majboot Singh were falsely implicated and thereafter, the murder of Narayan Singh, the brother of Bhagwan Singh deceased was committed about 8-10 years before the incident in question, in which appellant Lalloo @ Pahalwan and his relatives were tried though acquitted; that in due course of time, the deceased Bhagwan Singh tried to normalize the relations and invited the accused persons in the marriage of his daughter Rajjo which was attended by them (as has been stated by P.W.2 Pushpendra in his statement on oath at page 56 and 58 of paper book, that above marriage was solemnized about 15 days before the occurrence in question); that the motive lies in the mind of accused and correct details of motive, may not be known to or provided by the prosecution; that otherwise also in cases based on ocular evidence, motive looses its importance; that it appears that though the deceased was trying to revive normal relations and though accused-persons apparently responded positively, but it appears that some grudge remained in their minds and believing Bhagwan Singh and Majboot Singh responsible for murder of their brother Ratan and their false implication in the murder of Narayan Singh, (in which they were acquitted), when everything looked normal, on getting an opportunity they committed murder of Bhagwan Singh; that under Indian Law, if any part of statement of a witness is found to be false, it will not falsify his entire statement and even if any part of his statement is not found reliable, but for this reason, his entire statement may not be disbelieved, and other part of his statement may be relied; that P.W.1 appears to be not an eye-witness of the incident of the murder of Majboot Singh and on account of any contradiction, his trustworthy testimony as an eye-witness, in respect of the murder of Bhagwan Singh, may not be disbelieved; that P.W.1 and P.W.2 are natural and truthful witnesses with no material contradictions; that P.W.1 has stated to have called the deceased Bhagwan Singh, on request of accused-appellant Punjab Singh; that the entire prosecution version in this respect is fully proved by P.W.1 Pancham Singh, duly corroborated by the statement of P.W.2 and P.W.3; that the statements of P.W.1, P.W.2 and P.W.3 are consistent and there is no material contradiction in their statements; that the medical evidence on record in the shape of post mortem report of the deceased shows that as many as 31 injuries were found on the body of deceased Bhagwan Singh, out of which there were 10 incised wounds over vital parts of his body i.e. head and parietal region, resulting in his death; that it is absolutely wrong to say that incised wounds of deceased could not have been inflicted/sustained by Pharsa or would have been caused by some other light weapon like Knife; that the Medical Officer has stated on oath that due to injuries caused, almost all the ribs of the deceased were fractured, pleura was ruptured on both sides and incised wounds of deceased Bhagwan Singh could have been sustained by Pharsa and other injuries by hard and blunt object like bricks or stone; that there was no reason for falsely implicating the accused-appellants; that it is wrong to say that the deceased was a history sheeter, though his false implication in few cases due to village party bandi is not disputed; that it is wrong to say that the deceased used to commit dacoity with persons of Kabootera Gang or otherwise and could have been murdered by persons of Kabootera Gang or some unknown persons in the darkness of night; that the prosecution has proved the charges against appellants beyond any shadow of doubt; that the learned trial Court has rightly analyzed the evidence on record and has rightly convicted the accused-appellants for the offence under Section 302/34 IPC for the murder of Bhagwan Singh and has rightly sentenced them with appropriate punishment; that appeal has been filed with absolutely wrong and baseless allegations and is liable to be dismissed. 9. Since no State Appeal has been filed regarding the acquittal of appellants for the murder of Majboot Singh and no appeal has been filed regarding the acquittal of Mahendra Singh for the murder of Bhagwan Singh, so the facts in respect of deceased Majboot Singh as well as co-accused Mahendra are not being discussed in detail. Upon hearing parties counsel and perusal of record, we find that the correctness of impugned judgment and order of conviction may be tested on following points : 1. F.I.R. being ante-timed/inordinate delay in autopsy of dead bodies 2. Motive/false implication 3. Recovery of weapon 4. Contradictions between medical and ocular evidence. 5. Place of occurrence & Reliability of prosecution witnesses in view of (i) relation with the deceased (ii) enmity with accused (iii) non-production of independent witnesses 6. Conclusion 1. F.I.R. being ante-timed/Inordinate delay in Autopsy of dead bodies 10. The F.I.R. of the occurrence in question has been lodged at 4:00 a.m. on 3.6.1985 regarding the incident which is alleged to have occurred on 2.6.1985 in two parts, at 8:40 p.m. when Majboot Singh was murdered and at 9:00 p.m. when Bhagwan Singh was murdered and distance of place of occurrence from the police station is 5 Kms. 11. The post mortem of the bodies of two deceased Majboot Singh and Bhagwan Singh has been conducted on 4.6.1985 at 3:40 p.m. and 5:00 p.m., respectively, while their inquest reports had been completed at 9:15 a.m. and 11:15 a.m., respectively on 3.6.1985 and the distance between place of occurrence and P.S. Raksa, which is within the Sadar Tehsil, Jhansi is 5 Kms. while distance between District Head Quarter, Jhansi and the place of occurrence is around 13 Kms. as stated by P.W.5 Investigating Officer in his cross-examination at page 109 of paper book. In view of the fact that autopsy of the two dead bodies was conducted after inordinate delay of over 28 hours since preparation of inquest reports, while the distance upto postmortem house could have been covered within 30 minutes, there is reason to doubt as if all the documents relating to the inquest report etc. as well as the F.I.R. if have been prepared ante timed. as well as the F.I.R. if have been prepared ante timed. Non production of the scribe of F.I.R. Vijay Bahadur Singh and above mentioned delay gives force to the argument that Majboot Singh and Bhagwan Singh would have been murdered outside the village in the darkness of night and after bringing their bodies to village, F.I.R. would have been lodged ante-timed, upon deliberations and falsely implicating the appellants on the basis of old enmity and suspicion. 12. P.W.1 in his statement on oath has stated that he made a roll of the written report scribed by Vijay Bahadur Singh at the time of taking it to police station, did not make folds of it, his signatures were not obtained at any paper in police station and that Chik F.I.R. was not prepared on the basis of his written report, rather was written down on his dictation. 13. P.W.1 is an illiterate villager and may not be expected to be well versed with the procedure of lodging of F.I.R. Even upon preparation of Chik F.I.R. on the basis of his written report, it is quite possible that he could have gathered impression of F.I.R having been lodged on the basis of enquiry made from him. The Chik F.I.R. itself mentions name of scribe Vijay Bhahadur Singh and speaks of having been written on the basis of written report Ext. A-1. Had Chik F.I.R. Ext. A-4 been prepared on dictation of first informant and had Ext. A-1 been copied from it thereafter, there would have been no mention of the name of scribe it under any imagination. It is also noteworthy that for lodging F.I.R. ante-timed, there could have been no requirement of introducing scribe. So merely for non production of Vijay Bahadur Singh, Scribe, it would not be appropriate to treat the F.I.R. ante-timed. 14. We find that it is not disputed that the place of occurrence is situated within Sadar Tehsil, Jhansi within the territorial jurisdiction of police station Raksa at a distance of 5 Kms from police station and at a distance of 13 Kms. from District Head Quarters as per P.W.5. In absence of any evidence to the contrary, the above distance of 13 Kms. from District Head Quarters as per P.W.5. In absence of any evidence to the contrary, the above distance of 13 Kms. may have been covered at the most within one hour and in view of the fact that the inquest reports of two deceased had been prepared by 11:15 a.m. on 3.6.1985, in ordinary course their bodies ought have been brought to the District Head Quarter by 1:00 or latest by 2:00 p.m. and postmortem of two bodies could have been conducted by same evening/night on 3.6.1985. The prosecution has failed to explain as to why the bodies of deceased persons could not be sent to postmortem house at Jhansi within 15 Kms. on same day i.e. 3.6.1985, as well as the reason behind inordinate delay of over 28 hours in autopsy of two dead bodies, while inquest proceedings had been completed in forenoon. It is also surprising that neither statement of the scribe of the F.I.R. under Section 161 Cr.P.C. has been recorded by Investigating Officer nor he has been produced in witness box while he is alleged to have met the first informant P.W.1 by the side of the dead body of Bhagwan Singh deceased on his return after seeing dead body of Majboot Singh and was material witness of incident of murder also. 15. It is also noteworthy that neither the first informant nor the scribe of the F.I.R. are residents of village Punavali Kalan (where the occurrence is alleged to have taken place), rather both of them are residents of another village and were allegedly residing in village Punavali Kalan at the time of occurrence. All these facts and circumstances give weight to the argument that Majboot Singh and Bhagwan Singh would have been murdered outside the village in the darkness of night and after finding their dead bodies in abandoned condition, upon bringing their bodies to village and calling their relatives Attar Singh, brother of Majboot Singh deceased, Pancham, the brother-in-law of Bhagwan Singh deceased and Scribe Vijay Bahadur Singh F.I.R. was prepared on deliberations, falsely implicating accused-appellants due to old enmity and suspicion. It is also noteworthy that the copy of F.I.R. of this double murder case has been sent to the Magistrate on next day i.e. 4.3.1985 as per statement of Investigating Officer P.W.5. It is also noteworthy that the copy of F.I.R. of this double murder case has been sent to the Magistrate on next day i.e. 4.3.1985 as per statement of Investigating Officer P.W.5. So considering together all the aspects of (i) discrepancies in prosecution evidence with regard to lodging of F.I.R. as discussed above, (ii) non-recording of statement of scribe under Section 161 Cr.P.C. by Investigating Officer, (iii) non production of scribe in witness box and (iv) unexplained inordinate delay of over 28 hours in autopsy of the two dead bodies, we find that the prosecution has not come with clean hands and there is every possibility of F.I.R. having been lodged ante-timed and proceedings completed ante-timed. 2. Motive/false implication. 16. As per averments made in F.I.R., long back Ratan Singh, the brother of appellants was murdered, for which deceased Majboot Singh and Bhagwan Singh were charged, but acquitted and due to above enmity the murder of Narayan Singh, the brother of Bhagwan Singh deceased was allegedly committed by appellant Lalloo @ Pahalwan alongwith his relatives, but upon trial they were also acquitted. 17. As per prosecution due to above enmity, the murders of Majboot Singh and Bhagwan Singh have been committed by the accused appellants. 18. Undisputedly motive lies in the mind of accused and at all times it is not possible for prosecution to give correct details of motive of accused behind the crime and may only give probable motive of accused behind the crime. It is also pertinent to mention that enmity is double edged sword with equal chances of committal an offence on account of enmity, and equal possibility of his false implication on account of enmity. 19. From the F.I.R. itself, it is clear that murder of Ratan Singh, the brother of accused-appellant did take place long back. P.W.3 in his statement on oath at page 71-72 of paper book has stated that in case of murder of Ratan Singh about 20 years ago, accused Majboot Singh and Bhagwan Singh (both victims/deceased of this case) were acquitted about 18 years ago and, thereafter, murder of Narayan Singh, the brother of Bhagwan Singh was committed about 16 years before the incident, which case also resulted in acquittal of appellants. 20. 20. P.W.2 in his statement on oath at page 56 and 58 of paper book has stated that since before the occurrence in question, the appellants were invited in the marriage of his sister Rajjo and they had attended the function. In above circumstances, it may not be disputed that during several years since murder of Narayan Singh and acquittal of appellants, the appellants would have got several opportunities to cause death of Bhagwan Singh or Majboot Singh outside the village. Though the enmity of murders continues for years together and even from generation to generation and committal of murder due to such enmity after several years is not impossible, but in absence of intervening incident or any immediate cause behind double murder after such a long period, the possibility of committal of two murders within a span of half an hour inside the village over main Rasta under electric lamp posts surrounded by houses of villagers weakens and does not aspire confidence in absence of any independent, cogent and reliable evidence. 21. It is noteworthy that deaths of Majboot Singh and Bhagwan Singh are alleged to have been committed in the heart of village and while (i) death of Majboot Singh is alleged to have been caused infront of temple Karasdev as well as in front of door of Radhey Shyam, (South-West to the door of own house of Majboot Singh deceased), surrounded by the houses of other villagers, (ii) death of Bhagwan Singh is alleged to have been committed on the main road between the houses of Bhagwan Singh and accused-appellants, infront of house of Parmanand, surrounded with houses of Hardas blacksmith and other villagers. It is also noteworthy that the death of Majboot Singh is alleged to have been committed with bricks and stones as well as kicks and fists (without use of any deadly weapon) and as many as 24 injuries of contusions and abrasions have been found on his body, while death of Bhagwan Singh is alleged to have been committed with bricks, stones and pharsa blows and as many as 31 injuries have been found on his body including 10 incised wounds and rest abrasions, contusions as well as lacerated wounds. Usually a common prudent person, if commits murder of any person on account of enmity or otherwise, he will certainly opt for (i) some dark and lonely place and lonely hours for doing so and (ii) the fastest mode of causing death by using some deadly weapon in order to execute the murder within the shortest possible time, before he can be seen, identified or interferred/stopped by any other person. No prudent man/men may be supposed to commit such an offence of murders one after other under the electric lamp posts on main Rasta between the houses in the heart of village by adopting an unusual time taking long process of causing injuries with kicks/fists or stones/bricks etc., giving opportunity to victim to call villagers by raising alarm and giving opportunity to villagers to identify and catch him/them. 22. In view of above facts, we find that in absence of any untowards recent incident between the parties since after murders of Ratan Singh about 18-20 years back and Narayan Singh about 10 years back and acquittal of accused in both cases, while relations between the parties had somehow returned towards normal (as they started participating in the family functions of each other) and no attempt on the life of any of the two deceased is alleged to have been made during this period so as to renew the enmity, there appears no motive of the accused-appellants to suddenly settle alleged score of old enmity and cause death of two persons within 20 minutes in full light from electric poles in the heart of village over main Rasta or Chabutra of temple Karsdev where devotees must be visiting every now and then. Though P.W.3 in his statement on oath at page 71 of paper book has stated that Punjab Singh had beaten Majboot Singh last year, of which no report was made and in contradiction to his own statement has further stated that above incident of marpeet did take place about 3 years ago. In view of above self contradictory, the prosecution has failed to prove any immediate motive of accused-appellants behind the murders in question. 23. In view of above self contradictory, the prosecution has failed to prove any immediate motive of accused-appellants behind the murders in question. 23. In view of the evidence on record, we are of the considered view that the prosecution has failed to prove motive of the accused-appellants behind committal of murders of two deceased and possibility of their false implication on the basis of doubt on account of old enmity, may not be ruled out. Though motive looses its importance in cases based on ocular evidence, but in view of material contradictions in the statements of P.W.1, P.W.2 and P.W.3, this case appears to be relating to blind murders of two deceased outside the village, based on circumstantial evidence and the prosecution has failed to establish motive of accused-appellants behind crime. 3. Recovery of weapon 24. In the occurrence in question, the accused-appellants Lalloo @ Pahalwan and Punjab Singh allegedly wielded Pharsas and gave several blows to Bhagwan Singh deceased from behind, causing 10 incised wounds, while their brother Mahendra caused multiple injuries with stones. The weapon of crime, the two Pharsas are not alleged to have been recovered either from Lalloo Singh or from Punjab Singh and no attempts are alleged to have been made for their recovery. In absence of recovery of weapon of crime question of sending the Pharsas for chemical examination does not arise and there is no evidence to show that the Pharsa injuries were caused to Bhagwan Singh deceased by accused-appellants by the Pharsa so recovered from any of them. 4. Contradiction between medical and ocular evidence. As per postmortem report of Bhagwan Singh aged about 45 years, the postmortem of the body of Bhagwan Singh was conducted by Dr. D. Saxena P.W.4 on 4.6.1985 at 5:00 p.m., who opined that death of Bhagwan Singh had taken place about two days ago due to shock and hemorrhage as a result of laceration of lungs and liver on account of following 31 Ante Mortem injuries, which were found on the person of deceased Bhagwan Singh : 1. Incised wound 3 cm x .5 cm x muscle deep on fore head in mid line transverse, 8 cm above bridge of nose. 2. Incised wound 3 cm x .5 cm x muscle deep on right cheek, 4 cm away from right nostril. 3. Incised wound 2 cm x .5 cm x muscle deep under chin in middle/oblique. Incised wound 3 cm x .5 cm x muscle deep on fore head in mid line transverse, 8 cm above bridge of nose. 2. Incised wound 3 cm x .5 cm x muscle deep on right cheek, 4 cm away from right nostril. 3. Incised wound 2 cm x .5 cm x muscle deep under chin in middle/oblique. 4. Incised wound 1 cm x .5 cm x muscle deep on right lower jaw,oblique. 5. Incised wound 5 cm x 1 cm x bone deep on right parietal region 8 cm above right ear vertical. 6. Lacerated wound 11 cm x 4.5 cm x bone deep, vertical on top of head just right to mid-line. 7. Incised wound 7.5 cm x 2.5 cm x bone deep on left side of head over parietal region 9 cm above left ear. 8. Incised wound 7.5 cm x 2.5 cm x bone deep on left side of face 3.5 cm from outer angle of left eye to back of left ear, transverse in direction, upper part of left ear is cut. 9. Incised wound 3 cm x 1.5 cm x muscle deep on left side of chin 1 cm below left angle of mouth. 10. Incised wound 5 cm x 1.5 cm x bone deep on occipital region of head/transverse. 11. Abraded contusion 5 cm x 6 cm on back of right forearm, 7 cm below right elbow. 12. Lacerated wound 3 cm x 2 cm with amputation of terminal phalanx of right index finger. 13. Abrasion 3 cm x 2 cm on back of right elbow. 14. Abrasion 9 cm x 6 cm on back of left fore arm just below elbow. 15. Abrasion 6 cm x 2.5 cm on back of left fore arm 10 cm below elbow. 16. Incised wound 3 cm x .5 cm x skin deep on outer aspect of left fore arm 4 cm below elbow. 17. Abrasion 2 cm x 2 cm on back of left hand at the base of thumb. 18. 3 abrasions 1.5 cm x 2 cm, 2.5 cm x 1.5 cm, 3 cm x 2 cm in an area 6 cm x 3-1/2 cm over left phalanx 4 cm above illiac crest. 19. Abrasion 5 cm x 3 cm on left side of chest 17 cm below maxilla. 20. 18. 3 abrasions 1.5 cm x 2 cm, 2.5 cm x 1.5 cm, 3 cm x 2 cm in an area 6 cm x 3-1/2 cm over left phalanx 4 cm above illiac crest. 19. Abrasion 5 cm x 3 cm on left side of chest 17 cm below maxilla. 20. Abrasion 4 cm x 2.5 cm on left side of abdomen at 3’O’ clock position from umbilicus. 21. Abrasion 4 cm x 2.5 cm on left irregular region. 22. Abrasion 3 cm x 3 cm on left side of chest at 11 ‘O’ clock position 5 cm from left nipple. 23. Multiple irregular abrasions over an area of 18 cm x 10 cm on right side of chest below nipple. 24. Abrasion 2 cm x 1.5 cm on outer aspect of right thigh lower part, just above knee. 25. Abrasion 1 cm x 1 cm on outer aspect of right knee. 26. Abrasion 4.5 cm x 1.5 cm on front of right knee. 27. Abrasion 1.5 cm x 1 cm on outer aspect of right knee 6 cm below knee. 28. Multiple irregular abrasions in an area of 4.5 cm x 4 cm on front of right leg 4 cm below knee. 29. Abrasion 3 cm x 2.5 cm on front of left knee. 30. Abrasion of 9 cm x 1 cm on right side back 10 cm below inferior angle of right scapula. 31. Abraded contusion 5 cm x 4 cm on back of left shoulder. 25. The nature of injuries mentioned in the postmortem report of Bhagwan Singh deceased shows that he sustained 10 incised wounds, which are alleged to have been caused by two appellants with the blows of Pharsas in their hands. Upon perusal of postmortem report of Bhagwan Singh deceased together with statement of Medical Officer Dr. D. Saxena P.W.6, we find that out of 10 incised wounds of the deceased, injury Nos. 1, 2, 3, 4 and 9 are only muscle deep, injury No. 16 on hand is only skin deep and only injury Nos. 5, 7, 8 and 10 over face and head etc. are bone deep. 26. P.W.1 in his statement on oath has stated that all Pharsa blows on Bhagwan Singh were made from behind, upon which he felled down and one pharsa also hit his finger. 5, 7, 8 and 10 over face and head etc. are bone deep. 26. P.W.1 in his statement on oath has stated that all Pharsa blows on Bhagwan Singh were made from behind, upon which he felled down and one pharsa also hit his finger. The postmortem report thus states that two accused-appellants armed with sharp edged Pharsas jointly caused, four bone deep, 5 muscle deep and one skin deep, total 10 incised wounds to the deceased, while 21 abrasions contusions were allegedly caused to him by single person, the third assailant with bricks and stones. Usually in such circumstances, the assailants were supposed to give as many heavy Pharsa blows as possible on vital parts like neck, chest, stomach etc. to cause his death at the earliest and were not expected to adopt slow motion mode of causing injuries with bricks or stones or to give light Pharsa blows on non vital parts of body ascertaining minimum damage. It is also noteworthy that according to prosecution, there were three assailants who caused 31 injuries to deceased as mentioned above, while they were also in a position to strangulate him to death within 5-10 minutes. 27. It is not disputed that Pharsa carries a handle and in ordinary course whenever a prudent assailant will use Pharsa as weapon for causing death of victim, he will give the Pharsa blow to the deceased with full force and such blow of Pharsa, will in ordinary course cut down and damage the bone underneath injury. In Post mortem report of Bhagwan Singh Ext. A-3 “NAD” has been mentioned upon internal examination of his scalp, membrance, brain, base and vertebra, which shows that bones underneath the incised wounds were intact. As per statements of P.W.1 and P.W. 2, the deceased felled on the ground on sustaining several Pharsa blows from behind and even upon his falling down Pharsa blows were given to him. It is noteworthy that postmortem report does not state any incised wounds on rear or back part of head or body of Bhagwan Singh, which belies the testimony of P.W.1 and P.W.2, who claims that deceased was hit with Pharsa blows from behind. 28. It is noteworthy that postmortem report does not state any incised wounds on rear or back part of head or body of Bhagwan Singh, which belies the testimony of P.W.1 and P.W.2, who claims that deceased was hit with Pharsa blows from behind. 28. In view of above evidence on record and the nature of injuries, the incised wounds of deceased Bhagwan Singh do not appear to have been caused with Pharsa and possibility of their having been caused with some other light sharp edged weapon like knife etc. may not be ruled out. It is also noteworthy that out of 31 injuries, 21 injuries on the body of deceased Bhagwan Singh were abrasions or contusions most of which are not even on vital parts of body and such minor abrasions except few may also not be caused by stones. 29. The argument submitted by learned AGA that the injuries on parietal region with Pharsa may not damage the underneath bone, which can only be damaged by the blow of some hard blunt object like lathi etc. carries no force. 30. The learned trial Court has acquitted co-accused Mahendra @ Rajan finding him not involved in causing injuries with bricks & stones to Bhagwan Singh deceased and considering the fact that accused-appellants Lalloo and Punjab, who were allegedly armed with Pharsas have not been assigned role of causing him injuries with bricks and stones, so except 10 incised wounds, 21 other injuries of deceased Bhagwan Singh and author thereof remain unexplained. There is no evidence on record to show that despite armed with Pharsas accused-appellants Lalloo and Punjab also caused stone injuries to deceased Bhagwan Singh. Otherwise also, there can be no sense to them in causing 2 stone injuries to deceased after causing every Pharsa injury. 31. Upon careful analysis of evidence on record and discussions made above, we are of the considered view that the injuries of deceased Bhagwan Singh have not been sustained by him in the manner mentioned in F.I.R. and since there are material contradictions in medical and ocular evidence of P.W.1, P.W.2 and P.W.3 with regard to 31 injuries sustained by Bhagwan Singh deceased, prosecution witnesses do not appear to be eye-witness of the incident and the prosecution case is not trustworthy. 5. Place of Occurrence and Reliability of witnesses. 32. 5. Place of Occurrence and Reliability of witnesses. 32. Learned counsel for the appellants has disputed the place of occurrence and has stated that in fact no incident did take place within the village as stated in F.I.R. and since the deceased persons were having criminal antecedents and were involved in cases of dacoity etc. with persons of Kabootera Gang, they appear to have been murdered by some unknown persons or persons of Kabootera Gang in the darkness of night outside the village and their bodies appear to have been subsequently brought to the place of occurrence. He submitted that the case is not based on ocular evidence, rather is based on circumstantial evidence and the prosecution witnesses of fact are closely related with the deceased and since have enmity with accused-appellants, their testimonies are not reliable for their being partisan witnesses as well as for non production of independent witnesses Mahaval and other persons from houses and around the place of occurrence as well as scribe of the F.I.R. 33. Upon hearing the parties counsel and perusal of record, we find that P.W.1, P.W.2 and P.W.3, the witnesses of fact are closely related to the deceased and all of them are admittedly on inimical terms with the accused-appellants on account of false implication of Majboot Singh and Bhagwan Singh for the murder of Ratan Singh as well as due to acquittal of accused-appellant in the murder case of Narayan Singh. P.W.1 is brother-in-law of deceased Bhagwan Singh, P.W.2 is son of deceased Bhagwan Singh while P.W.3 is brother of deceased Majboot Singh. Though the evidence of prosecution witnesses may not be discarded merely on the ground of their being relative of the deceased, but their testimony is required to be looked into with extra care and caution. It is pertinent to mention that P.W.2 Pushpendra was only 12 years old at the time of occurrence as he was only 14 years old at the time of recording of his statement on oath before the trial Court. P.W.1 in his statement at page 57 of paper book has stated that his uncle Ranvir Singh and his son Ram Pal also came there and F.I.R. states that on alarm neighbours and villagers also came there. 34. P.W.1 in his statement at page 57 of paper book has stated that his uncle Ranvir Singh and his son Ram Pal also came there and F.I.R. states that on alarm neighbours and villagers also came there. 34. As per site plan of the occurrence Exhibit A-18, main Rasta over which death of Bhagwan Singh was allegedly caused, is North - South with houses on East and West both sides and towards South, infront of the house of brother of accused-appellant Badam Singh, above Rasta turns towards West and goes upto Mandir Karasdev and further makes ‘Y’, and turns to North and South, where there are houses of villagers as well as accused-appellant and deceased Majboot Singh on two sides of Rasta. Death of Majboot Singh is alleged to have been committed near his own house, at the door of Radhey Shyam infront of platform of Karasdev temple. It is pertinent to mention that murder of Majboot Singh was allegedly committed at 8:40 p.m., while that of Bhagwan Singh within next 20 minutes at 9:00 p.m. P.W.1 has stated that vehicles use to pass easily on this East-West Rasta, on which house of Badam Singh is on Southern side, while that of Bhagwan Singh on Northern side and in between 12-13 houses are situated and he saw from the door of house of Bhagwan Singh that Bhagwan Singh sat with accused-appellant at the platform of Badam Singh. The incident in question is alleged to have been taken place in the night of 2.6.1985 in the month of June i.e. in summer season and P.W.1 has stated in his cross-examination at page 42 of paper book that Þe`rd Hkxoku flag ds edku ds lkeus esu jksM ij txg&2 fctyh ds [kEcs yxs gS vkSj jks'kuh gksrh gSA dkjlnso ds pcwrjs okys jkLrs ij Hkh fctyh yxh gSA bl jkLrs ij eqfYteku ds edku ds lkeus 4] 5 dne ij dkjlnso dk eafnj gS vkSj bl eafnj ds ikl fctyh dk [kEck yxk gSA xfeZ;ks ds fnuksa esa lHkh yksx vius njokts ij 8] 9 cts rd cSBs jgrs gSaA pgy igy jgrh gSA xfeZ;ksa ds fnuksa esa vius edku ds ckgj cus pcwrjksa ij dqN yksx ysVrs vkSj dqN viuh Nrksa ij ysVrs gSaA [kfygkuksa ds le; ij T;knkrj yksx vius&2 [kfy;kuks ij jgrs gSaA xfeZ;ksa ds fnuksa esa 9] 10 cts rd txkj jgrh gSAÞ at page 43 of paper book Þvxy&cxy ds njokts ij o lkeus dh ykbu esa yksx vius&2 njokts ij cSBrs gS ml fnu Hkh cSBs FksA vl [kqn dgk fd lkeus pDdh yxh gS og py jgh FkhA tc iatkc flg djhc 8&1@2 cts e`rd Hkxoku flg dks cqykus vk;s Fks rc rd Hkh eSa ogh pcwrjs ij cSBk FkkA esjs ikl ds iwjk iM+ksl ds yksx Hkh vius&2 njoktksa ij cSBs FksA cl iatkc cqykus vk;k rc pDdh py ugha jgh Fkh can gks x;h FkhA Hkxoku flg o cknke flg ds edkuksa ds chp esa tks 12] 13 edku gS muesa 4] 6 dPps gS cdk;k iDds gSaA Hkxoku flg ds edku ds lkeus okyh ykbu esa NksVs yky] ijekuUn o j?kqoj ds edku iDds gS Åij Nrs gS gjnkl dk edku dPpk gSAÞ and P.W.2 has stated in his cross-examination at page 60 and 61/62 of the paper book that Þtc eSa o iape flg vius edku ds pcwrjs ij vkdj cSB x, Fks ml le; esjs edku ds vklikl edkuksa ds pcqrjksa ij yksx cSBs FksA esjs edku ds lkeus jkLrk gSA Þtc iatkc flg esjs ?kj ij esjs firk dks cqykus vk;k rks eq>s iatkc flg ij 'kd gqvkA eSaus rFkk iape flg us vius ?kj esa ?kqldj fdokM+ can ugha fd;sA tc esjs firk th ?kj ls ckgj fudys rks iatkc flg us dgk fd esjs lkFk pyksA vkSj esjs firk th lkFk py fn,A esjs firk th us lkFk tkus ls euk ugha fd;k vkSj u iape flg us esjs firk th dks jksdkAÞ The above statements show that in the village in question where there was electric supply at the time of incident, in the month of June the persons in neighbouring houses, who used to awake upto 10:00 p.m. and used to sleep in their Courtyards or on roofs, were awaking at around 8:40 or 9:00 p.m. It is also noteworthy that death of Majboot Singh is alleged to have been caused infront of platform of Karasdev Temple near electric lamp pole by causing as many as 24 injuries with bricks and stones and similarly 21 injuries of bricks and stones were caused to Bhagwan Singh apart from 10 incised injuries allegedly caused by Pharsas on main Rasta in front of house of Parmanand near another electric lamp pole. In the event of committal of murder in such manner, the victim would certainly have raised alarm with long lasting screams upon each and every bricks, stones, or pharsa blows on which arrival of several villagers from neighbouring houses on both sides of Rasta would have been quite natural. P.W.1 has stated that the floor-mill had been closed by the time of incident and the trial Court has held that in such circumstances it is not possible that he would not have heard the screams of Majboot Singh deceased (who sustained 24 injuries of bricks/stones) and it is quite strange/unnatural that none of the neighbour or P.W.1 or P.W.3 reached for rescue to Majboot Singh particularly when at the time of first murder of Majboot Singh the accused were not armed with any deadly weapon. 35. It is highly unbelievable that during successive murders of Majboot Singh and Bhagwan Singh within village nobody would have come out from his house for rescue in the early hours of night in summers, when villagers were awaking. 36. As per F.I.R. Mahaval Singh and others seen the incident of murder of Majboot Singh. P.W.1 in his statement on oath at page 36 of paper book has stated that when Punjab Singh caught hold of Bhagwan Singh, Mahaval Singh also arrived there. He has stated at page 57 of paper book that his uncle Ranvir Singh and his son Ram Pal also came there while F.I.R. states that on alarm neighbours and villagers also came there. So amongst others at least Mahaval Singh was independent witness of the two murders. Above Mahaval Singh was the best independent witness. The prosecution has failed to produce Mahaval Singh, the independent eye-witness of murder of Majboot Singh as well as any other villagers, neighbours from the houses on either side of the Rasta as well as place of occurrence viz. Ved Prakash, Hardas etc., who could have been natural eye-witness of the incident from their roofs or door or Ranvir Singh or Ram Pal mentioned above. It is also pertinent to mention that P.W.2 is a child witness and possibility of his testimony being based on tutoring, may not be ruled out. 37. Ved Prakash, Hardas etc., who could have been natural eye-witness of the incident from their roofs or door or Ranvir Singh or Ram Pal mentioned above. It is also pertinent to mention that P.W.2 is a child witness and possibility of his testimony being based on tutoring, may not be ruled out. 37. P.W. 1 in his statement at page 48 of paper book has also stated that when Punjab came at the house of Bhagwan Singh to call him, he was in quite peaceful state, which is quite impossible in case of committal of murder of Majboot Singh by him just 20 minutes ago. The nature of injuries sustained by Bhagwan Singh showing no damage of bones underneath incised wounds makes them doubtful of having been caused with Pharsa. The P.W.3 Attar Singh, the brother of Majboot Singh deceased claims himself to be an eye-witness of the murder of Bhagwan Singh at the time when he was returning from call of nature. There are material contradictions in the statements of three eye-witnesses and considering their enmity with the accused-appellants and their relationship with deceased Bhagwan Singh and Majboot Singh, the statements of P.Ws.1, 2 and 3 do not inspire confidence. It is pertinent to mention that P.W.3 Attar Singh is also not an independent witness as he is brother of Majboot Singh deceased. He has stated that on return from call of nature on the way Mahaval Singh told him that appellants have caused death of his brother Majboot Singh, but in the meantime since Pancham Singh P.W.1 and Pushpendra Singh P.W.2 told him that appellants are killing Bhagwan Singh so instead of going his home to see his deceased brother, he firstly went with Pancham Singh and seen the incident of the murder of Bhagwan Singh. Similarly P.W.1 has stated that after death of Bhagwan Singh he went to see Majboot Singh deceased. The above conduct of P.W.3 in staying with Pancham Singh and Pushpendra for witnessing the incident of murder of Bhagwan Singh despite getting news of murder of his brother Majboot Singh and vice versa of Pancham Singh to visit the dead body of Majboot Singh are quite unnatural and their testimony do not inspire confidence. 38. The above conduct of P.W.3 in staying with Pancham Singh and Pushpendra for witnessing the incident of murder of Bhagwan Singh despite getting news of murder of his brother Majboot Singh and vice versa of Pancham Singh to visit the dead body of Majboot Singh are quite unnatural and their testimony do not inspire confidence. 38. There were three assailants but not causing of any injury to Pancham Singh, Pushpendra Singh or Attar Singh with Pharsa blows or even by pelting stones also creates doubt over their presence at the time of occurrence. It is also highly improbable that the accused-appellants will cause murder of two persons on account of 8-10 years old enmity, over main Rasta surrounded by houses on both sides rather near the houses of deceased and under the electric lamp posts with unusual weapons, like stones and bricks and without giving any Pharsa blow on vital parts of the body of deceased within a span of 20 minutes. 39. It is noteworthy that none of the alleged eye-witnesses P.W.1, P.W.2 and P.W.3 have sustained even single injury at the hands of assailants, the accused-appellants while they were armed with Pharsas and bricks/stones. P.W.1 at page 36 of paper book, in para 4 of his statement has stated that on his alarm P.W.3 Attar Singh came and when he looked at accused-appellants they attempted injuries on him and he entered in the house of Hardas blacksmith. It is very strange and unbelievable that three accused who allegedly attempted on Attar Singh neither gave any Pharsa blow nor pelted stones or bricks on him or on P.W.1 and P.W.2 who were closely related with Bhagwan Singh, and it makes their presence on the spot doubtful. 6. Conclusion 40. It is proved from the evidence on record as has also been admitted by P.W.1 that the deceased had been tried for several offences including offences of dacoity and murder and it has been argued by appellant that possibility of committal of their murder by some unknown persons in the darkness of night at some other places, may not be ruled out. 41. From the evidence on record, we find that it is not a case based on ocular evidence, rather it is a case of blind murders based on circumstantial evidence in darkness of night. Since the prosecution story is full of unusual events viz. 41. From the evidence on record, we find that it is not a case based on ocular evidence, rather it is a case of blind murders based on circumstantial evidence in darkness of night. Since the prosecution story is full of unusual events viz. (i) nature of injuries on the deceased, (ii) weapon of crime, (iii) alleged place of occurrence in early hours of night in summer season in light of electrical lamp post over main Rasta of village surrounded by houses in the heart of village, (iv) unnatural conduct of witnesses (v) consequent murders within 20 minutes as well as (vi) non production of material independent witnesses Mahaval Singh, Vijay Bahadur Singh Scribe, Ranvir Singh, Ram Pal, villagers or neighbours etc., there arises doubt on prosecution case and the testimony of prosecution witnesses can’t be considered reliable, cogent and trustworthy. It also gives strength to the argument advanced by accused-appellants that deceased were murdered at some dark and lonely place outside the village by some unknown persons and upon getting knowledge and bringing their bodies and calling the first informant and scribe (who are residents of other villages), the anti-time F.I.R. was lodged with concocted story. 42. Upon careful analyzation of entire evidence on record indicates that deaths of Majboot Singh or Bhagwan Singh were caused by some unknown persons in the darkness of night outside the village and since the miscreants could not be seen or identified, due to old enmity upon deliberations F.I.R. was lodged against the accused-appellants and their brother on the basis of suspicion. We also find that it a case based on circumstantial evidence and since prosecution has failed to prove the complete chain of circumstances showing murder of two deceased by accused-appellants and by none other-than them, by any cogent and reliable evidence by prosecution. We are of the considered opinion that in such circumstances, the prosecution has failed to prove charges against accused-appellants beyond reasonable doubt and the accused-appellants are entitled to get an order of acquittal by giving them benefit of doubt. 43. In view of discussions made above, we have come to the conclusion that the prosecution has failed to prove charges of murder of Bhagwan Singh against accused-appellants and the learned trial Court has acted wrongly and illegally in relying on the untrustworthy evidence of partisan witnesses, which is full of material contradictions. 43. In view of discussions made above, we have come to the conclusion that the prosecution has failed to prove charges of murder of Bhagwan Singh against accused-appellants and the learned trial Court has acted wrongly and illegally in relying on the untrustworthy evidence of partisan witnesses, which is full of material contradictions. The findings of learned trial Court in disbelieving the prosecution witnesses in respect of murder of Majboot Singh by the appellants as well as participation of co-accused Mahendra @ Rajan alongwith appellants in the murder of Bhagwan Singh are unchallenged. The trial Court has also acted wrongly and perversely in disbelieving the prosecution evidence at one place and convicting the accused-appellants for murder of Bhagwan Singh by relying on the same at the other place. The impugned judgment and order of conviction and sentence of accused-appellants under Section 302/34 IPC for the murder of Bhagwan Singh may not be allowed to stand and is liable to be set aside. The appeal is liable to be allowed. 44. The appeal is allowed. The impugned judgment and order of conviction and sentence is set aside. The accused-appellant Punjab Singh has died and appeal in his respect has been abated. The sole surviving appellant Lalloo Singh @ Pahalwan, who is on bail is acquitted of charges framed against him. His bail bonds are cancelled and sureties are discharged. He need not surrender. 45. Let the record of trial Court be sent back to Court below forthwith alongwith copy of this judgment. 46. Material exhibits, if any, be disposed of after statutory period in accordance with rules.