JUDGMENT
S.K. Agarwal, J.
1. This criminal appeal has arisen out of an order of conviction dated 16-12-1980 passed by Sri M. G. Godbole, Sessions Judge, Jaluan at Orai, in S.T. No. 65 of 1980 under Section 302 and 302/34, I.P.C. Both the appellants were sentenced to imprisonment for life. Shobha Ram was sentenced simplicitor.
2. The brief facts of the case are that on 8-4-1980, in the evening, the informant, Balaram, was sitting with his father, Ram Kishan including Devi Dayal alias Devi Din, Bhagwan Din sons of Bhoora and another distantly related grand-father Tularam on the Chabutara of his house. They were busy in deliberations. Nearby, on the ground, Bhoora son of Din Dayal Chamar, and Ram Charan son of Ghashita Chamar were also sitting. At about 6.00 p.m. Shobha Ram armed with a licensed gun and his brother Dharam Dass with a double barrel gun came from the side of the temple. They stood near the boundary wall. Dharam Dass exhorted that “the enemy is sitting. Kill him. He may not escape.” Immediately, Shobha Ram fired upon Devi Dayal alias Devi Din. The fire struck Devi Dayal on his back and he fell down and died. All the witnesses present at the spot and Halke Singh son of Ram Dularey Singh, who was coming after taking water, exhorted the assailants, who took to their heels afterwards. The motive for the incident, as alleged in the F.I.R., is that Devi Dayal was involved in the murder of Ganga Prasad, maternal uncle of Dharam Dass and Shobha Ram and to avenge his murder the two appellants have murdered Devi Dayal.
3. The report of the incident, Ext. Ka-1 on the record, was lodged by Balram at about 10.00 p.m. on 8-4-1980 at P. S. Aata, District Jalaun. The distance between the spot of incident and the police station is six miles. After the registration of the case and preparation of chick report, Ext. Ka-4, the investigation was taken over by P.W. 5 D. N. Chaturvedi. After conclusion of all the formalities, charge-sheet, Ext. Ka-17, was submitted by him against both the appellants.
4. The appellants pleaded not guilty and claimed to be tried. They pleaded that they have been involved in the present offence due to pre-existing enmity.
5. We have heard the learned counsel for the appellants and learned A.G.A. for the State at length.
6. In order to support its case, the prosecution has produced P.W. 1 Balram, P.W. 2 Bhoora, and P.W. 3 Halke Singh as ocular witnesses. Four formal witnesses were also examined, out of whom P.W. 4 Dr. S. C. Misra conducted the autopsy. P.W. 5 D. N. Chaturvedi is the first Investigating Officer. P.W. 6 is the second Investigating Officer, who submitted the charge-sheet. P.W. 7 Ram Gopal Patoria is the person who escorted the dead body to the mortuary.
7. So fas as occurrence and the death of Devi Dayal is concerned, there cannot be any doubt. It cannot be doubted for even a moment that Devi Dayal had met a homicidal health. The medical evidence fully corroborates it.
8. The arguments advanced before us by learned counsel for appellants are as follows :
Firstly, that the witnesses are either closely related to the deceased or chance witnesses at the time of occurrence, in the facts and circumstances of the case, is remote, and secondly, the medical evidence is in conflict with the case of the prosecution. According to the prosecution, Shobha Ram fired only one shot and no other shots were repeated upon the deceased. It appears to be a hit and run affair.
9. The medical evidence conclusively shows the presence of two shots. This situation, according to the learned counsel for the defence, further discredits the presence of the witnesses at the spot. The prosecution has made crude attempt to wriggle out from the presence of blunt weapon injury upon the person of the victim. The length and breadth of the contusion on the shoulder called for an explanation from the prosecution, according to his submission. The last limb of the argument is that the F.I.R. in the case appears to be ante-timed. Its lodging at the alleged time is highly doubtful. The probability is suggestive of the fact that this F.I.R. came into existence after the preparation of the inquest memo. The inquest shows the F.I.R. to be in two pages, whereas, in fact, this F.I.R., paper No. 7 on the original record, shows to be only in one page. Enormous delay, if the F.I.R. was transcribed, as alleged by the prosecution, in the post-mortem remained unexplained. In this case it is alleged that the occurrence has taken place on 8-4-1980 at about 6.00 p.m. The F.I.R. was lodged at 10.00 p.m. on the same day. The body was handed over to the Constable (P.W. 7), as per his own evidence, at about 7.45 a.m. On 9-4-1980. Despite that, the dead body was brought to the doctor at 4.30 in the evening on 10-4-1980 and no plausible explanation has been offered for this enormous delay in taking the dead body to the doctor for autopsy. According to the learned counsel for the defence, all the facts and circumstances, if read cumulatively, lead to the one and the only inference that the F.I.R. in this case was ante-timed and ante-dated.
10. In order to deal with the first and second arguments of the learned counsel for the defence, we have to examine the medical evidence as well as the evidence of the witnesses carefully and with circumspection. The case, as set up in the F.I.R., is that after receiving the injury on his back, victim Devi Dayal fell down and breathed his last. The F.I.R. suggests use of licensed gun by Shobha Ram only once. So far as the other appellant, Dharam Dass, is concerned, though he was shown to be armed with a double barrel gun, no use of gun by him is alleged in the F.I.R.
11. A perusal of the post-mortem examination report, specially ante-mortem injuries, will reveal that the first injury is on the back. There are 11 entry wounds of the size of 0.6 cm. x 0.5 cm. 5 on the left and 6 on the right. No tattooing or charring, etc. were found in these injuries. The second firearm injury contained 3 pellets on the right lateral side of back in an area of 12 cm. in a vertical line. The direction is right to left. No tattooing, charring, etc. was present. The third injury contains two pellets in an area of 6 cm. on posterio lateral aspect of right upper arm. Margins inverted. No tattooing or charring etc. was present. A contusion 8 cm. x 4 cm. was found on the right shoulder. There were two firearm wounds of exit on medial aspect of right upper arm. Margins were everted and lacerated. Right lung was punctured in the upper and lower lobes. Stomach was found perforated. Both the stomach and small intestine was found empty, but the large intestine was full. Liver was found punctured. The death, according to the medical opinion, must have occurred more than six hours after the last meal. The cause of death was shock and haemorrhage as a result of the injuries.
12. The medical evidence is provided by P.W. 4 Dr. G. C. Misra. In para 4 he has stated that the death could have occurred at about 6.00 p.m. on 8-4-1980. He has very categorically stated that in his personal opinion the injuries sustained by the victim are of more than one fire. He has clarified this statement by stating that if a hand-filled cartridge is used, which contains about 16 pellets, then this can be the injury from one shot as well. We cannot forget that in the present case use of licensed gun has been alleged. The doctor has stated very clearly that if the cartridge is a standard one, it contained 6 to 9 pellets and in that case these injuries are not possible from a single shot. He has further stated with regard to injury No. 4, the contusion, that if anything of the dimension of injury No. 4 is lying on the ground and the victim falls on that this injury is possible. All these facts have come in the examination-in-chief. He had further admitted in the cross-examination that he has not shown the area of injury No. 1, which was split on the right and the left on the back. Five pellets on the left and six on the right. This he had done because these pellets had a huge dispersal. If the pellets were embedded in an area of 10-12 cm., the area is described in the injury, but since these injuries were covering large part of the back, therefore, he did not note the area. He further stated in para 5 that injury No. 2’s direction is right to left, whereas the direction of injury No. 1 is left to right and on the basis of this he is of the opinion that more than one fire had been made upon the victim. From his statement it is very clear that these injuries were not the result of one shot, but more than one shot. Secondly, the contusion cannot be the result of the fall. Thus, from the medical evidence it becomes apparent that the incident did not occur in the manner as alleged by the prosecution.
13. Now dealing with the evidence of the witnesses, P.W. 1 Balram is the nephew of the deceased. Ram Kishan is his father. Bhagwan Din and Devi Dayal alias Devi Din are the brothes of Ram Kishan. Devi Dayal is the deceased in the incident. These three brothers are the sons of Bhoora. The appellants are also uncles of the informant and cousin brother of the deceased. Ram Kishan, Bhagwan Din and Devi Dayal alias Devi Din’s father Bhoora was the brother of Kunji Lal, who is the father of these appellants. This clearly indicates that P.W. 1 is a close relative of both the appellants and the deceased. The only so-called independent witness examined in the case is Halke Singh. So far as Bhoora son of Devi Dayal is con- cerned, he claimed to be sitting there from the very beginning. He is Harijan by cast and the parties, i.e. Balram etc. belong to the upper class of the society. Ganga Prasad was murdered about 14 months before P.W. 1 deposed in the Court. In that murder Bhoora, Ram Kishan and Devi Din were arrayed as accused. In that incident they were acquitted. It is alleged that since thereafter the relations were competely severed between these families. Ganga Prasad was the maternal uncle of these appellants. The informant claims that Ram Kishan, Devi Dayal alias Devi Din, Bhagwan Din are all living separately from each other. His grand father, Bhoora, was living independently in a different house. Their houses are in the vicinity. This witness, P.W. 1, claimed that he is living with his father, Ram Kishan. He has admitted that the house of Halke Singh is at a considerable distance from him. According to him some 2/3 houses after the house of Tota Ram the road turns towards west. The same road after enveloping another 2/ 3 houses turns towards north. Further 2 houses afterwards the third house of P.W. 3 Halke Singh falls. It has further come in his evidence that in front of the house of Halke Singh the house of Shanker Singh is there. In the west of the house of Halke Singh, at some distance, there is a well. He had further admitted that the house of witness Bhoora son of Din Dayal, and Ram Charan are situated in the northern part of the village. He has his house in the southern part of the village. He has admitted that the deceased and Bhagwan Din have their joint agriculture, but his father has separated. Their crop, after harvesting, was lifted same 5/10 days before the incident. On the date of incident, he admits that he had taken his meal at about 10-11 in the morning. He has a shop, but he claimed that on the date of the incident he had not opened his shop at all. When probed why it was not opened, he said that he did not like to open and, therefore, it was not opened. His was a general merchant shop. The defence has suggested to him that his shop was not opened because he had gone to purchase material for his shop to Kalpi. His case is that after taking his meals at 11.00 a.m. he had gone to the new pond, which was under construction and returned back to his home at about. 5.00 p.m. He claimed that when he came back to his house he found Ram Kishan, Bhagwan Din and Devi Dayal alias Devi Din sitting together on the Chabutara. According to him at that time P.W. 2 Bhoora and Ram Charan were not sitting there. These two witnesses, as per his admission, arrived there after half an hour of his arrival. Both of them are farmers and have their agriculture. His claim is that this gathering was on account of discussion for the marriage of Tularam’s sister. He also sat down there. The bridegroom was already arranged. The discussion was about the articles that were to be purchased. No body asked him to bring anything from the market. He further admitted that Bhoora and Ram Charan were also returning back from the side of the pond. Since his father asked them to enjoy tobacco, therefore, they also sat down. Tobacco was called from inside the house. It was being prepared and in the meantime the incident occurred. According to him, they had no close relation with Bhoora and Ram Charan. On being enquired upon, he told them that he came from the pond. No further talks about the pond ensued thereafter. According to him his Chabutara was about 10-12′ (feet) in length and 6-7′ (feet) in width. It was in front of the house of Ram Kishan. According to him there are two Chabutaras, This was the inner Chabutara. Devi Dayal, deceased, was facing north-south. Chabutara was about a hand and quarter high from the road. The temple has a boundary wall. Height of it fluctuates. At some place it is 2W and other place it is 4 to 4 1/2. The wall is Pucca. The height in front of their Chabutara was about 3 1/2. On the east of this boundary wall vacant land of about 1 Bigha is lying. Shobha Ram and Dharam Dass appellants are living jointly. Shobha Ram came from the lane up to the door of the house. He further admitted that in coming to the boundary wall of his house they could have easily come directly from their house. They had not to come through the vacant land. At a distance of 6-7′ Neem tree is standing from the boundary wall. In the south of the boundary wall the temple is situated. He has denied the presence of Pujari Ram Narain in the temple at the relevant time, although the suggestion given to this witness clearly indicates that he is making a false statement. Pujari Ram Narain appears to have been living in that temple. He had married his daughter from this temple just a year ago. In order to wriggle out of the false denial made by him, he stated that he did not use to go to the temple. He further stated that since in the morning no Puja was performed and in the evening he did not find the Pujari, therefore, he is saying that he was not there. If Puja would have been performed then the presence of Pujari could have been established. He further stated that he cannot say that any Puja was performed in the evening. There is no fixed time for performing the Puja in the evening. All these statements prima facie made by this witness to deny the presence of the Pujari in the temple because, admittedly, the temple adjoins their house.
14. So far as motive is concerned, from the evidence of this witness it is apparent that it does not fall upon these appellants. The F.I.R. of that incident was lodged by the nephew of deceased Ganga Prasad. He has two more nephews Bharat and Sulkhan. These two nephews were also witnesses of that murder case. Shobha Ram was witness but Devi Dayal did appear as a writness in that murder but subsequently he denied this fact. He admitted that the report in the murder case of Ganga Prasad was a true report. They did not nurse any malice against the maker of the F.I.R. of that case. He further stated that he had no animosity against Shobha Ram and Dharam Dass. Thus, from the statement made by PW 1 Balram in para 9 it is crystal clear that none of these two appellants had any motive or animus against the deceased. The deceased Ganga Prasad had his three nephews, one of them was the informant and the other two Bharat and Sulkhan appeared as witnesses. They may have motive, but not these two appellants. He further admitteid in para 10 that when the appellants challenged only then he could see them. Prior to that he had not seen them. He further stated that when he saw them the appellants were to the east of the boundary wall at a distance of about a foot. According to him at the time of challenge and firing the appellants were at a distance of about 13′ from Devi Dayal, Earlier he had stated that Devi Dayal was sitting with his face towards east and his back close to the boundry wall. This clearly indicates that the shooting has been resorted to upon the deceased from the back, that is from the south and not from the eastern side. If the shooting was resorted to from the eastern side the injuries ought to have been on the front of the deceased. If we examine the site plan the house of Shobha Ram is shown to be in the north east side and Neem tree is shown inside the temple. The site plan very clearly shows the house of the Priest of the temple in the very vicinity of the houses of the witnesses. The wall is shown on the eastern side. The witnesses are shown to be sitting at spot, 1,2,3 and 6 in close vicinity to each other. In that situation if we go by the site plan a person making fire from behind the boundary wall from the north-eastern side will not be able to cause the injuries sustained by the deceased and that is why he has made a change and stated that the accused persons were in the north-east and not directly in the east. He further stated that in the east they were at a distance of about a foot and a half towards north. He further stated that since Ganga Prasad died as a result of fire made by Devi Dayal, therefore, he had inferred when Dharam Dass challenged Dushman is present, he intended to kill Devi Dayal. They could not get any opportunity to run away because immediately on the challenge of Dharam Dass, Shobha Ram opened fire. The fire was made by placing the barrel on the wall of the boundry. The moment witnesses challenged, the assailants ran away. This further indicates clearly that till then Halke Singh could not have reached the place of occurrence. He admitted that no stray pellets were embedded in the wall or in the Chabutara. Nobody had asked them to lodge a report. He went inside the house and brought the paper and pen and thereafter sat down to prepare the report. When they started from their house the darkness has started interceding but the lights were not still on. They had gone to the police station on foot. The report was first given to the Head Constable and thereafter he got a copy of the report. The I.O. has given out the details of the incident. The I.O. reached one spot after half an hour of his arrival to the spot. The I.O, came there at about 12.00 in the night. No statement of his was recorded at the police station although he had told everything to the I.O. His statement was recorded by the I.O. in the morning at about 9.00 a.m. at the spot. The dead body was despatched at about 8.00 a.m. to Orai. Halke Singh was called by the I.O. to the spot and thereafter his statement was recorded. Bhoora and Ram Charan were also summoned by the I.O., but they were not available. He pleaded ignorance whether the I.O. has recorded the statement of Bhoora and Ram Charan at all. When the fire was made Halke was about 12-14′ from the house of Devi Dayal alias Devi Din. Devi Din’s house is about 20-25′ from the house of Ram Kishan in the south. A suggestion was given that in the partition Bhoora had got bigger share of the property than the other brothers. Thus, from a perusal of the statement of PW 1 what transpires is that his presence at the spot is highly doubtful for the reason that he is a shopkeeper. Firstly the reason given by him for not opening the shop on that date is not appearing to be genuine and correct. The defence has suggested him that he had gone to Kalpi to fetch necessary material for the shop. From his own admission it appears that the talks amongst the brothers were for the marriage of the siter of Tularam, an uncle by relation. Then also the probability is that this witness may have already been in Kalpi for the purpose of purchasing necessary materials for the marriage as well as for his shop. There appears to be some substance in the suggestion made by the defence to this witness. His explanation does not impress us that he had not opened the shop because he did not like to on that particular day. His statement under Section 161, Cr.P.C. was not recorded by I.O. at the police station. Secondly, his father and Bhoora were also accused in the murder of Bhagwan Dass. Both of them were present but no fire was made on any of them. According to the prosecution and this witness, only one shot was fired, but the medical evidence runs contrary to the deposition of these witnesses including PW 1 Balram. According to medical opinion, two shots were fired.
15. So far as PW 3 Halke Singh is concerned, we have already stated in the preceding paragraph that his presence at the spot is highly doubtful. He has claimed that he was coming back after taking water at the relevant moment. The well, according to him, is about 50-60 steps south. His house has not been shown in the site plan. A well is shown in the site plan in the northern side. He has very clearly stated that Devi Din fell down on his left shoulder after receiving the shot. The Law of Motion shows clearly that after receiving gunshot injury a person used to fall in the opposite direction generally. In this case injuries are on the back of the victim and, therefore, it is probable that the victim, after receiving injuries on his back, may fall faceward. He has denied the defence suggestion that any one had struck Lathi blow on Devi Dayal. According to him, the place where these appellants were standing behind the w all, the wall was about 2-1 /2 hands high, which means about 4-1/2 to 5′ in height. He claimed that he had seen Shobha Ram firing the shot. It was fired by placing the barrel on the wall. Only one fire was discharged. He admitted that just behind his house after another house there is a well. Therefore, in our opinion he had no reason to come so far for taking water. From his own admission, near his house there are some more wells in the southern part itself. Therefore, it is unbelievable and unacceptable that a person will travel such a long distance to take water. The explanation given by him that water of the wells in the victinity of his house was not sweet, but was salty is deliberate and wholly unacceptable to us.
16. Balram has not made any such statement. He has admitted the presence of several wells in the southern part and northern part. He was called from his house in the morning by the I.O. after the body was despatched for postmortem on 9-4-1978 and his statement was recorded thereafter. We have no doubts in our mind that PW 3 Halke Singh is a completely got up witness and his evidence is unreliable.
17. Now coming to the statement of PW 2 Bhoora, we do not feel it safe to place any implicit reliance upon the testimony of even this witness. The only reason provided by PW 1 for their presence does not stand the scrutiny. These witnesses were passing through the road leading north-south in front of the house of PW 1. They were asked by his father to share Tobacco. As earlier stated, these witnesses belong to Schedule Caste. It is common knowledge that in the village neither water nor Tobacco is being shared by the people of upper caste with the people of lower cast. Ram Kishan called him to share Tobacco, therefore, he sat there. He admitted that the pond was being dug for the last 15 days. About 200 labourers from the village were employed in the digging of this pond, but he denied, deliberately, that he and Ram Charan were not amongst the labourers. He stated that he had no specific reason for going to the pond on that day. According to him, there were 10-12 more people, who were watching the digging of the pond. He stated that he reached the pond around 4.00 p.m. This time he was telling by approximation. He admitted that on the pond he met Ramadhar, Ram Dass, Lotan, Ganga Din, etc. He claimed that when he returned from the pond it was quite bright. At about 5/ 5.30 he claimed that he stated his return from the pond. According to him the pond is about 100 steps away from the house of Ram Kishan. He stated that the fire was discharged after 10 minutes of his arrival. According to him, all the other persons, such as Ram Kishan, Bhagwan Din and Tularam were sitting in the north. Only Devi Dayal was sitting with his face to west and back toward east. The rest of the persons were sitting with their face towards Devi Dayal alias Devi Din. They talked about the pond and their faces were towards east. Devi Din was sitting at a distance of 5-7 hands from him. This situation, in our opinion, is unacceptable. If they had to talk about the marriage of the sister of Tularam, then in all likelihood they will sit close to each other. As stated by PW 1 that in between him, his father Ram Kishan, Bhagwan Din and Tularam, the distance was hardly 9″ to 12″. We are unable to understand that why the deceased Devi Dayal will sit from them at a distance of 5-7 hands with his back towards the wall. This is only to explain the presence of the injury on the back and complete absence of any injury to others. Both the witnesses (PW 1 and PW 2) are saying that they could see the assailants only after the exhortation or challenge thrown by Dharam Dass. It does not appear to us probable and acceptable that anyone will do so. If they had an intention to kill in the manner in which they had, it does not seem to us believable that they will throw any challenge. They had sheltered themselves behind the wall, which was about 4/5′ in height. In these circumstances, we feel that all this has been the ingenuity of the Investigating Agency. Only a single fire has been made in the incident, but the medical report shows that two independent shots appear to have been fired. Apart from that the presence of blunt weapon injury remained completely unexplained. The crude attempt made by the prosecution to explain it by a fall does not stand any scrutiny especially considering the hight of the Chabutra. This witness also has no plausible reason to state that he sat to chew tobacco. Even their going to the pond is not substantiated from any credible evidence.
18. Even the investigation in this case appears to be very sketchy and lacklustre, bordering ingenuity. No attempt was made by the I.O. to arrange for the light in the night. Why the statement of the informant was not recorded at the police station is also unexplained. It is admitted to the I.O. that Halke Singh was summoned and thereafter his statement was recorded. He admitted that he had not recorded the statement of PW 2 Bhoora. No report for sending the blood stained earth, simple earth and other articles stained with blood for analysis by the chemical examiner made. Even there is no report for comparing the recovered spent cartridge and tickles with the gun to the Ballistic Expert was also made. He admitted that at the spot ‘A’ from, where the shot is shown to have been made, the wall was about 4′ high. It was enough for the assailants to hide themselves. According to him the Chabutara, on which the deceased and the witness were sitting, was about 1 -1/2′ high. From this height no such injury on the shoulder is probable. He admitted that he did not deem it necessary to record the statement of Balram after transcription of the report at the police station. There is a mention of sending of the special report in the G.D., but who and at what time it was taken to the superior officials is not in his knowledge. He admitted that the Priest of the temple was not available to him, but he did not deny that the Priest is not living in the temple, as denied by PW 1. He was not able to tell as to how many houses in north and south of Ram Kishan’s house are there. In the north of temple and in the north of the house of Tularam, whose houses are there, he was unable to tell. He has not noted down any such house in the site plan. He was given a blunt suggestion that he has not investigated the case honestly. Bhoora’s statement was recorded by the second I.O. on 15-5-1980. The occurrence is dated 8-4-1980. Bhoora’s testimony can also easily be discarded for such a delayed examination under Section 161, Cr.P.C.
19. Now the dead body is claimed to have been handed over to the Constable Ram Gopal Patoria on 9-4-1980 at 7.45 in the morning. He claimed that the body was handed over to him along with relevant papers. He further claimed that he reached the headquarter, i.e. Police Lines, Orai, at 16.35 hours on that very date. In cross examination he admitted that the distance between Aata and Orai is only 18 Kms., it is unacceptable to us that he started at about 7.45 in the morning and yet he had taken about 10 hours in arriving at the Police Lines, Orai, covering a distance of about 18 Kms. Even this much time could not have been taken if the body would have been brought on shoulders. He admitted that the body was brought on a carrier. He further admitted that at about 4.30 in the evening on 10-4-1980 the body and the paper were handed over to the Doctor for postmortem, that means exactly after 24 hours the body being brought to the Police Lines.
20. In the circumstances of this case almost two days’ time was used by the prosecution in bringing the body for postmortem to the mortuary raises a serious doubt in the authenticity of the fact that the F.I.R. of this case was lodged at 10.00 p.m. This fact is further corroborated from the circumstance that the inquest memo shows the chick F.I.R. to be in two pages, whereas the copy appeneded along with the papers sent with the inquest memo shows the F.I.R. to be only in one page. This gives an indication also that some bungling was committed regarding F.I.R. It appears that initially some other report was there and subsequently a fresh F.I.R. was prepared in the morning in collusion with the police.
21. For the reasons that we summarise as under, firstly, that the medical evidence in this case is in conflict with the occular testimony, secondly, the F.I.R. does not appear to have been lodged at the time, as alleged by the prosecution, and thirdly, the manner of the assault, as stated by the witnesses, that are all rendered doubtful by the conflicting medical evidence. Presence of witnesses is highly doubful. For these reasons the presence of the witnesses, i.e. PW 1 Balram and PW 2 Bhoora, whose statements were recorded after 5 weeks, and PW 3 Halke Singh, who had absolutely no reason to be there, and the explanation offered by him is unbelieveble in the circumstances of the case, we find it unsafe to place any reliance upon their evidence.
22. In view of above, the appeal is allowed and the conviction and consequent sentence passed against the appellants by the Court of Sessions, as aforesaid, is hereby set aside. The appellants are on bail. They need not surrender. Their bail bonds and sureties are hereby discharged.