Rajasthan High Court - Jaipur
Inder Singh Alias Thunia Singh And Anr. vs State Of Rajasthan on 30 March, 1990
Equivalent citations: 1990(2)WLN24
JUDGMENT R.S. Verma, J.
1. Learned Addl. Sessions Judge No. 1 Hanumangarh exercising jurisdiction in Sessions Division. Sriganganagar, has convicted accused-appellants Inder Singh alias Thunia Singh & Nahar Singh for offences Under Sections 302 read with 34, IPC and 450 IPC. On the first count, he has sentenced each one of the appellants to undergo imprisonment for life and to pay a fine of Rs. 1000/- each and in default to undergo further rigorous imprisonment for six months. On the second count, each of the appellants has been sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 500/- each end in default, to undergo further rigorous imprisonment for three months each. Both the substantive santence have been ordered to run concurrently. Aggrieved Inder Singh has filed D.B Criminal Jail Appeal No. 367/85 while Nahar Singh has filed D B. Criminal Jail Appeal No. 368/85. Since both the appeals arise out of a common judgment, they have been heard together and are being disposed of by a single judgment.
2. The appellants and the deceased as also P.W. 1 Kishan Singh and P.W. 2 Vijay Singh are close relations as would be evident from the podigree given below:
Jeet Singh | ______________________________________________________ | | | | Khangar Singh Ram Singh Kalu Singh Ganpat Singh alias | | | | | ____________________ Gang Singh | | | | | Sohan Singh Himmat Kishan Vijay ______________ | Singh Singh Singh | | | Bhopal Bhani Singh Singh ___________________ | | Nahar Singh Inder Singh (appellant) (appellant) The prosecution story is that certain agricultural land of Khangar Singh, the grand father of the appellants was under cultivatory possession of Ganpat Singh and his sons P.W. 1 Kishan Singh, P.W. 2 Vijay Singh and Himmat Singh since deceased. Sohan Singh, father of the appellants claimed 1/3rd share in the said land and some litigation ensued between the appellants on one hand and P.W. 1 Kishan Singh, P.W. 2 Vijay Singh and deceased Himmat Singh as the other hand. Thus, the relations between the two branches on the family were strained. As a sequal, Sohan Singh aforesaid was murdered. Three arraigned at the trial for murder of Sohan Singh, namely, Amar Singh s/o P.W. 1 Kishan Singh, P.W. 2 Vijay Singh himself and Babu Singh son of deceased Himmat Singh. The prosecution story is that at the aforesaid trial, Amar Singh and Vijay Singh were acquitted but Babu Singh was convicted. The appellants, therefore, bore a grouse towards Himmat Singh, whose son had been convicted for the murder of the father of the appellants.
3. The prosecution story, further, is that P.W. 1 Kishan Singh and P.W. 2 Vijai Singh were residing in village Dhaba itself while Himmat Singh aforesaid was residing at Ladam with his sister even though he had a house at Dhaba and his sons were residing in the dhanis of village Dhaba. Himmat Singh came to village Dhaba on 21-3-1983 and stayed that day and following night with P.W. 2 Vijay Singh On 22-3-1983 at about 12 noon, Himmat Singh took his lunch at the residence of P.W. 2 Vijay Singh, P.W. 1 Kishan Singh happened to be present at the time Himmat Singh was taking his lunch After Himmat Singh had taken the lunch, PW 1 Kishan Singh and Himmat Singh left for the house of Himmat Singh and reached the house of Himmat Singh within a short while. Both of then squatted in the outer room of Himmat Singh for a while and then Himmat Singh got ready for taking a beth in that very 100m. He got up and sat on pata'. No sooner Himmat Singh bad sat on the 'pata', the accused-appellants entered the room of Himmat Singh from its eastern door. Each one of them was having a sword. Both of them. deait a sword blow each on the head of Himmat Singh with the result that Himmat Singh fell down from the 'pata'. Seeing this, P.W. 1 Kishan Singh ran out of the room and rushed to the house of P.W. 2 Vijay Singh. He informed P.W. 2 Vijay Singh of this incident at which Vijay Singh accompanied with Kishan Singh, came towards the house of Himmat Singh and from behind the turn of the street, they saw appellant dragging Himmat Singh from the Chabutara of his house to the street After dropping Himmat Singh on the street, the appellants ran away. Kishan Singh and Vijay Singh hen went near Himmat Singh and touched him and found that he had already died. On this. P.W. 2 Vijay Singh stayed on with the dead body of Himmat Singh while P.W. 1 Kishan Singh proceeded for police station, Sangaria at a distance of 7 miles. P.W. 1 Kishan Singh lodged a report of the incident at about 3 45 p.m. with P.W. 4 Gopala Ram, S.H.O. of police station, Sangaria. Gopala Ram got a formal FIR Ex.P 1 recorded and proceeded for the scene of occurrence He found the dead body of Himmat Singh lying on the street opposite the house of the deceased. He prepared a site plan Ex.P 3 at the instance of P.W. 1 Kishan Singh. He also prepared index of the site plan Ex.P 3-A in this regard. He examined the dead body of Himmat Singh and prepared inquest report Ex.P 4. He made certain recoveries from the spot including blood stained earth from the outer room of Himmat Singh and from the street as also control soil from the two places. He recorded the statements of the witnesses and got an autopsy performed on the dead body next day. This autopsy was performed by P.W. 3 Dr. Suresh Chandra Jain on 23-3-1983 at 11 a.m. The dead body was identified by P.W. 1 Kishan Singh Dr. Jain found rigor mortis present in all the four limbs. He also found post-mortem lividity present on the dependent parts of the body. The doctor found the following external injuries on the person of the deceased:
(1) Transverse incised wound measuring 10 x 6 cms. in front of neck with inverted margins. On exploration of this injury, he round the wouud full of blood clots;
(2) Irregular incised wound, transverse in direction measuring 7.5 x 5 cms. x bone deep cutting right ear. Transverse gone to right occipital proturberance;
(3) Incised wound measuring 10 x 5.5 cms. x bone deep. Transversely oblique and from upwards to downwards in direction on the occipital region of the scalp with blood clots present thereon;
(4) Incised wound measuring 5 x 25 cms. x bone deep cutting the left ear;
(5) Abrasion measuring 10 x 0.5 cms. on right scapular region and transverse in direction.
(6) Abrasion measuring 5 x 0.25 cms. in middle of right forearm on. Antero-medial aspect.
He found that under injury No. 1 trachea and oesophagus had been cut, second thyroid cartilage had also been cut and carotid artery and jugular vein on right side had been cut. He found that thyroid glann had retracted upwards under injury No. 1 Both the lungs of the deceased were congested. The chambers of the heart were empty. Bladder was full of urine. Stomach was err pty while small intestine and large intestiness were Pale and full of gases. According to Dr. Jain, all the injuries found on the persons of the deceased were ante-mortem in nature and death of the deceased had been. caused as a result of injury No. 1 leading to severe haemorrhage and shock. Dr. Jain prepared post-mortem report Ex. P. 22 in this regards.
4. The prosecution case is that the blood stained clothes of the deceased were recovered after post-mortem examination vide Ex.P 11 and were duly sealed.
5. The case of the prosecution is that the accused-appellants were arrested on 9-4-83 by Shri Gopala Ram vide memo Ex. P. 12 pertaining to Nahar Singh and Ex. P. 13 pertaining to Inder Singh alias Thunia Singh. The prosecution story, further, is that on 14-4-83 at 7.15 a.m., Nahar Singh gave information in respect of a sword, which was recorded by Gopala Ram vide Ex. P. 14. The same day at 7.30 a.m., Inder Singh volunteered information to Gopala Ram regarding a sword vide Ex. P. 15. In pursuance of the information furnished by Nahar Singh, a sword was recovered by Gopala Ram the same day at 9.15 a.m. from the filed of Nahar Singh concealed in 'Kanak' vide Ex. P. 16. The same day after about 30 minutes i.e., at 9 45 a.m., another sword was recovered by Gopala Ram at the instance of Inder Singh from that very field concealed in 'kanak vide Ex. P. 17. Gopala Ram see both the weapons and prepared a plan Ex. P. 18 and its legend Ex.P 18A with regard to this recovery. The prosecution story, further, is that the various articles recovered during the course of investigation were sent to State Forenic Laboratory and a report Ex. P. 19 was received with regard to them. Upon such material, the accused-apellants were challenged in the court of Munsif & Judi. Magistrate, Sangaria, who committed them to sessions to stand trial for offences Under Sections 302 and 450 IPC.
6. The learned Addl. Sessions ludge No. 1, Hanumangarb, who was seized of the case, framed charges against the accused persons for offences Under Sections 302 and 450 IPC. Both the accused pleaded not guilty and claimed trial.
7. The prosecution examined P.W. 1 Kishan Singh, P.W. 2 Vijay Singh, P.W. 3 Dr. Suresh Chandra Jain and P.W. 4 Gopala Ram in support of its case.
8. In their statements recorded Under Section 313 of the Criminal Procedure Code both the accused persons completely denied the prosecution story and alleged that they had been falsely implicated due to enmity. They denied that any weapons had been recovered at their instance. They, how ever, did not lead any evidence in defence.
9. The learned Addl. Sessioos Judge after hearing both the sides, came to the conclusion that Himmat Singh had died a homicidal death on 22-3-1983 at about 1 p.m. in the house of deceased Himmat Singh. He arrived at the conclusion that both the accused appellants had assaulted Himmat Singh with swords in presence of P.W. 1 Kishan Singh resulting m the aforesaid injuries on his person, which led to his death. He found the evidence of P.W. 1, Kishan Singh, credible and found that the same was corroborated by testimony of Vijay Singh as also by medical evidence and the FIR. Consequently, he convicted and sentenced the appellants as stated above.
10. Learned Counsel for the appellants has vehemently criticised the testimony of Kirshan Singh and Vijay Singh and has submitted that the two witnesses were inimical to the accused-appellants and their testimony was not worthy of credence and the learned trial court fall in error in relying upon the same He submits that the prosecution has failed to establish its case beyond shadow of reasonable doubt and, therefore, the accused-appellants are entitled to be acquitted of both the charges. Learned PP has suppoited the judgment of the learned court below and has urged that the testimony of Kishan Singh and Vijay Singh was lightly found to be worthy of credence and this evidence as well as by the FIR lodged promptly and as such, the conviction of the appellants was proper and did not call for any interference from this court.
11 We have carefully considered the contensions raised before us and have perused the record of the learned trial court.
12. At the outset, we may state that we have no hesitation in agreeing with the learned trial court that deceased Himmat Singh did die a homicidal death in his own house at Dhaba on 22-3-1983 in the noon. We have also no hesitation in coming to the conclusion that the deceased had been assaulted by some sharp edged weapon or weapons and asustained injuries mentioned above. We have also no hesitation incoming to the conclusion that it was injury No. I found on the person of the deceased, which led to severe hae-morrhage and shock and caused his death. There is also no doubt that the injuries found on the person of the deceased were antemortem in nature. On this aspect of the case, the testimony of Dr. Suresh Chandra Jain has not been challenged. How ever, we have to see if the finding of the learned trial court that it were the two accused-appellants, who committed murder of Himmat Singh after committing criminal house trespass in furtherance of a common intension of both the appellants, is sustainable or not.
13. We may state that P.W. 1 Kishan Singh and P.W. 2 Vijay Singh are the real brothers of the deceased. Admittedly, their relations with the accused persons were seriously strained. Father of the accused-appellants had been murdered sometime prior to the occurrence and at the said trial, P.W. 2 Vijay Singh was arraigned as an accused. At that very trial of Kishan Singh P.W. 1, namely, Amar Singh was also armed as an accused The son of the deceased Himmat Singh, Babu Singh was also an accused in that case. Admittedly, it was accused-appellant Nahar Singh, who had made a report about this murder of his father Soban Singh and as a result of trial, Himmat Singh's son Babu Singh was convicted. The murder of Sohart Singh, father of the appellants was admittedly a sequal to an earlier dispute between the parties regarding possession of land between Sohan Singh, father of the appellants on one hand and Kishan Singh, Vijay Singh and Himmat Singh, deceased on the other. Now, enmity is a double edged weapon On one hand, it could afford a motive to the accused-appellants to commit murder of Himmat Singh, on the other hand, it could very well furnish a motive for Kishan Singh and Vijay Singh to implicate the accused appellants falsely. In our opinion, this background of enmily) y requires that the testimony of Kishan Singh and Vijay Singh should be carefully scruti-nised to ascertain whether the version given by them is true or not. We need not out right reject the testimony of these witnesses on the ground of their being close relatives of the deceased because close relationship by itself is not a good ground to discard testimony of a witness, who is otherwise found to be reliable, how ever, we should not, accept the ipse dixit of the two witnesses without submitting their statements to a close and careful scrutiny.
14. P.W. 1 Kishan Singh is the sole witness of the alleged criminal house trespass and assault and testimony of P.W. 2 Vijay Singh about such criminal house trespass and assault is at best derivative and secondary in nature Hence, the prosecution shall stand or fall with the testimony of P.W. 1 Kishan Singh. The story put forth by Kishan Singh P.W. 1 is to the effect that Himmat Singh had come to village Dhaba a day prior to the incident. Himmat Singh had stayed with P.W. 2 Vijay Singh on the day of his arrival and on the night also, he had stayed at the house of Vijay Singh. He had his dinner also at the house of Vijay Singh on that night. According to him, the witness went to the house of Vijay Singh in the morning on the day of the incident and stayed with Himmat Singh at the house of Vijay Singh till 12 noon Himmat Singh had taken his lunch at the house of Vijay Singh in the presence of this witness at about this time According to him, Himmat Singh was a healthy person and had eaten 'four Angul of Roti and Dal'. According to him, he himself did not taken his lunch at the house of Vijay Singh. Soon after taking the lunch, this witness and the deceased came to the room of the house of Himmat Singh and Himmat Singh sat down on a 'pata' for taking his allusions. Within 4 to 5 minutes, both the accused-appellants came to the room armed with swords and attacked the deceased with the result that deceased felt down. The witness is silent as to how the deceased reacted when he was assaulted by the two assailant. The witness has admitted in cross-examination that he did not raise any alarm He states that he ran to the house of Vijay Singh He claims to have narrated the incident to Vijay Singh and further, claims that he returned with Vijay Singh and the witness and Vijay Singh concealed themselves behind a turn on the street and from there, saw the accused-appellants dragging Himmat Singh down from the platform. He states that, thereafter, both the appellants ran away. According to him, he went immediately to the police station and reported the incident. On the showing of this witness, the deceased was assaulted within few minutes to his having taken the lunch. The story given by this witness is belied by the medical testimony and Dr. Jain is categorical in his opinion that the deceased must have taken his food at least 4 to 5 hours prior to his death. He is also categorical on the point that deceased must have met an instantaneous death. We find this aspect of the evidence of Dr. Jain cogent and trustworthy. He did not find any food in the stomach or intestines of the deceased Hence, the story that deceased was assaulted soon after he had taken the lunch is unreliable. We, therefore, find that the version put forth by Kishan Singh is not worthy of credence at all when be says that he had seen the deceased taking his lunch at the house of Vijai Singh that very day soon before the alleged result Not only this, we find that Vijay Singh has also given a different version altogether on this aspect. According to him, Himmat Singh had come to his house a day prior to the incident On the data of the incident, Himmat Singh took his meals at his house at about 10 a.m. This witness is categorical on the point that day, Kishan Singh had cot at all come to his house prior to the incident. Thus, on this aspect of the matter, testimony of Kishan Singh is belied by the medical evidence as also by the evidence of Vijay Singh. Hence, the prosecution version that Kishan Singh had gone to the house of Vijay Singh and had seen Himmat Singh taking his meal and soon thereafter had accompanied Himmat Singh to his house and then Himmat Singh was assaulted in his presence is rendered un-worthy of credenee and cannot be accepted.
15. The contract of Kishan Singh P.W. is unnatural and does not inspire belief He does not state how Himmat Singh reacted under the assault. Had he been really present, when assault on Himmat Singh took place, he would have been in a position to state how Himmat Singh had reacted to the assault. His silence on this aspect goes to create a doubt about his presence at the spot. He had admitted that he did not raise any alarm even after he had rushed out of the house of Himmat Singh and the explanation is that he was morally scared that he may also not be assaulted. It is to be recalled that according to him, Dhaba was a village of 3-4 thousand dwellings. He could have run bit further and could have shouted for help but he did not do so. He has admitted that house of Baggu Ram and Sujan Singh were in the vicinity of the house of Vijay Singh. He does not claim that he tried to call inmates of these houses to the rescue of the deceased. He admitted that in the vicinity of the turn, from where alleged dragging of the deceased was witnessed, were the houses of Bhani Ram and Sahad Ram. He does not claim that inmates of these houses were called for help. In one breath, the witness stated that the houses were uninhabited but in the next breath, admitted that both these houses were inhabitated. Thus, the witness has prevaricated on this apparently in significant fact, which renders his testimony all the more doubtful. According to him, the deceased was getiing ready to sit down on the 'pata' for taking his bath but the witness has admitted that deceased had not put off his clothes Firstly, it is unusal for a person to take his bath after he had already taken his lunch. Secondly, it would be unusual for a person going to take bath, to sit on the 'Pata' without putting off his clothes. If the deceased was sitting on the 'pata' at the time of the assault, the 'pata' is bound to have received some blood stains. It does not appear that any blood stains were found on the 'pata' by Gopala Ram. No such blood stained pata has been recovered by the Investigating Officer. Hence, the statement of the witness does not inspire confidence when he say that the deceased was sitting on the 'pata when he was assaulted, in this context, it may be stated that the fatal injury received by the deceased had cut carotid artery and jugular vein and is sure to have resulted in profuse bleeding, as admitted by Dr. Jain. Hence, it is unlikely that 'pata' would not have received any tall tale mark of blood even though the deceased was sitting on the 'pata' at the time of the alleged assault.
16. The prosecution has come forward with the story that the deceased has been dragged down from platform of the house to the street opposite the house of the deceased. Both Kishan Singh and Vijay Singh claims that they saw the appellants dragging Himmat Singh from the platform of his house If it would have been so, the dragging would have left some sort of trail of blood when the dead body was dragged across the platform, which according to Ex. P. 3 A was 14-1/2 x 8" in dimension. The Investigating Officer has admitted that he did not find any trail of blood or spots between the two points viz. where the alleged assault was made and allegedly where the dead body was lying. Learned P.P. contended that the deceased was wearing clothes and this may have obstructed flow of blood to form a trail. This contention of the P.P. does not appear to be sound because the profuse bleeding which must have taken place, should have left some tale marks.
17 It is surprising that the appellants assaulted only Himmat Singh and did not assault or attempt to assault Kishan Singh, who was on equally inimical terms with them and they allowed him to run away from the spot to give evidence against them so much as even without receiving a scratch. This is highly improbable that the appellants would allow their mortal enemy to run away and allow him to live to give evidence against them.
18. Thus, a close scrutiny of the testimony of Kishan Singh goes to show that his evidence is full of infirmities and cannot be accepted on its face value. Now, we may examine the testimony of P.W. 2 Vijay Singh. As already stated, he is also a close relation of the deceased and is on inimical terms with the appellants. He was tried for the murder of the father of the appellants and was acquitted. His evidence is to the effect that on the day of the incident, at about 2 p.m. his brother Kishan Singh came to him and told him that Himmat Singh was being assaulted by Nahar Singh and Inder Singh by swords. He does not specifically say that he reached towards the scene of occurence but states that be and Kishan Singh saw from the turn of the street that both the appellants were dragging Himmat Singh from the plat form of the house and were throwing him down. He does not give the manner in which the accused-appellants are said to have dragged the deceased. According to him both the appellants were havirg naked swords in their hands and the appellant then ran away. He does not state that he raised any hue and cry at that time and the explanation advanced is that he was deadly afraid. He has tried to put forward a case that though the houses of Bhani Ram and Sahab Ram were in the vicinity, but they were uninhabited. His testimony on this aspect is belied by the evidence of Kishan Singh already referred to above. He does not state in what direction, the appellants ran away. He has admitted that even after the appellants had run away, he did not raise any alarm and the explanation is that this matter pertained to factionalism He was confronted by his police statement Ex. D. 1 in which he had not mentioned that he had seen the appellants armed with naked swords. He was unable to explain this important and vital omission in the previous statement Ex. Dl. Thus, the testimony of this witness, particularly looking to his conduct, does not inspire confidence and cannot be used for corroborating the testimony of Kishan Singh. It is trite law that one infirm witness cannot corroborate the testimony of another infirm witness.
19. There is one more feature of the case, which though insignificant, goes to show that both Kishan Singh and Vijay Singh are capable of prevaricating even on minor matters In the FIR, Kishan Singh had stated that at the time of the murder of Himmat Singh, one Bhanwar Singh was standing near the corner of the house of Najar Singh. At the trial, Kishan Singh has resiled from this portion of the FIR marked A to B. Likewise, in his statement Ex. Dl, portion A to B Vijay Singh had stated that at the time of murder, Bhanwar Singh was standing at the corner of the house of Najar Singh. He also disowned this statement.
20. We may state that when two witnesses make similar assertions during the course of investigation on a particular point and uniformly improve upon the version in an identical manner, then it shows that the improvements are designed and purposeful. Such improvements are not innocent and go to show that the witnesses have purposefully and designedly male the improvements. Such designed improvement in the prosecution story has left us baffled and we are of the view that neither Kishan Singh not Vijay Singh are very reliable persons
21. Dr. Jain was categorical that injury No. 2 found on the person of the deceased could not have been caused by a sword because this was an irregular incised wound Two swords were allegedly recovered in this case,. one at the instance of Inder Singh and another at the instance of Nahar Singh. Both these swords were not shown to the doctor by the learned PP. conducting the case is the trial court. The swords were allegedly sent to the State Forensic Science Laboratory and a report has not also been produced with regard to that but he has not been shown that the swords remained in the condition in which they were originally sealed till they reached the Forensic Science Laboratory The Malkhana-in charge and the carrier of these weapons have not been produced. Hence, Ex. P/19 loses all its worth and the recoveries cannot be used for connecting the accused persons with the crime Ex. P/19 shows that the articles had been sent for serological examination but the report of serologist was also not produced. This further renders report Ex. P/19 worthless. Ex. P/19 does not speak of human blood having been found on the two swords allegedly recovered at the instance of the two accused appellants. Even otherwise, these recoveries do not inspire any confidence in as much as the attesting witnesses pertaining to these recoveries have not been examined before the trial court.
22. We find that the Investigating Officer has not been very careful in this case In the Panchnama Ex. P/4 prepared by him, be did not mention the fact that Kishan Singh had witnessed the actual assault or that Kishan Singh and Vijay Singh had seen the accused-appellants dragging Himmat Singh from the platform to the street. This infirmity in preparation of the inquest report is suggestive of the fact that at the time this document was prepared, it was not known to the police or to any other persons present at the spot that P.W. 1 Kishan Singh bad actually witnessed the assault or P.W. 1 Kishan Singh and P.W. 2 Vijay Singh had seen the accused persons dragging the dead body. We are fortified in this view by a Division Bench judgment reported in Banwari and Ors. v. The State of Rajasthan and State of Rajasthan v. Ishwar Singh and Ors. (1978) (3) R. Cr. C 40, where in a similar view had been taken.
23. Learned P. P. vehemently urged that in this case the murder took place at 2 P. m. and FIR was lodged at 3 45 P. m., which shows that there was no delay in lodging the FIR. He urges that the prosecution story is corroborated by the FIR and, therefore, the testimony of Kishan Singh and Vijay Singh should not be discarded. We find that the argument is apparantly plausible but has no sound basis. According to P.W. 1 Kishan Singh was stated in his examination-in-chief, the alleged assault had taken place at about 1 p.m. In cross-examination, he stated that assault had been made within 4 or 5 minutes of Himmat Singh and Kishan Singh reaching the house after meals were taken by Himmat Singh According to him, meals were taken by Himmat Singh, at 12 noon and immediately thereafter, both had come to the house of Himmat Singh. Thus, the story that alleged assault took place at 2 P.M. is not established beyond shadow of reasonable: doubt. When it is so, there remains an unexplained delay of about 2 hours, or so, which to our mind, in the peculiar facts of the case, is very material. In the present case, there was opportunity to Kishan Singh and Vijay Singh to make consultations In the present case, this possibility has not been ruled out that Himmat Singh might have been murdered by some unknown assailant or assailants and Kisban Singh and Himmat Singh, in consultation with each other may have ioped in the two appellants falsely, they being: on inimical terms with the appellants. In the FIR, Kishan Singh stated the presence of Bbanwar Singh as already discused above Vijay Shigh also mentioned the presence of Bhanwar Singh in his police statement Ex. D. 1. This uniformity on this point by Kishan Singh and Vijay Singh does point to some consultation having been made before the FIR was. lodged. It appears that both the witnesses in the intial stages of investigation wanted to come out with a case that Bhanwar Singh was one of the particeps criminis but later on uniformly and denied bis presence at the spot. Hence, we are afraid FIR in the case is not very helpful to the prosecution and cannot be utilised to corroborate the testimony of Kishan Singh and Vijay Singh.
24. We may accept that the prosecution has to prove its case-beyond shadow of reasonable doubt. There is a good deal of distance to be travelled between the points "must have" and "may have". It may be that Nahar Singh and Inder Singh might have committed this murder but we do not find it safe to rely upon the infirm testimony of Kishan Singh and Vijay Singh, which is in conflict with medical evidence on record We, therefore, find that the prosecution has failed to establish its case beyod shadow of reasonable doubt that accused-appellants Nahar Singh and Inder Singh committed the murder of Himmat Singh as alleged. There is good deal of doubt about the crime having been committed by the two appellants and the appellants are entitled to benefit of this reasonable doubt.
25. We, therefore, accept the appeals and set aside the convictions and sentences passed upon the appellants for offences Under Sections 362 read with 34 and 450 IPC. We acquit them of the aforsaid cearges. The accused-appellants are in custody and they shall be released forthwith, if not required in any other case.