B.R. Arora, J.
1. This appeal is directed against the judgment dated 5-3-94, passed by the Additional Sessions Judge No. 1, Shri Ganganagar, by which the learned Additional Sessions Judge convicted appellant Sukhdeo Singh for the offence under Section 302 IPC and appellant Ram Narain Singh for the offence under Section 302/34 IPC and sentenced each of them to undergo imprisonment for life and a fine of Rs. 500/- each and in default of payment of fine further to undergo four month's simple imprisonment.
2. Accused-appellants Ram Narain Singh and Sukhdeo Singh were tried by the learned Additional Sessions Judge No. 1, Shri Ganganagar, for the offences under Sections 302/34 and 302 IPC, respectively, for committing the murder of Niranjan Singh nearing the Sale Out-let of country-made liquour in Chak No. 1 -X on 1-9-90 at 8.00 p.m. The case of the prosecution is that deceased Niranjan Singh agreed to sell twenty-two Bighas of his land to his brother accused Ram Narain Singh and took an advance of Rs. 10,000/-. Later on, Niranjan Singh annulled this agreement and returned the advance of Rs. 10,000/- to his brother Ram Narain Singh. On account of this animosity, a quarrel took place between Ram Narain Singh and Niranjan Singh outside the liquor shop. Gursharan Singh - the other brother - was returning from Gurdeo Singh Bawri's house and when he reached near the Diggi (water pond) of the village, he heard the noise coming from the side of the liquor shop. On hearing the noise, his sister-in-law Jasveer Kaur (widow of Niranjan Singh) and Jagsir Singh (son of Niranjan Singh), also, came there. Niranjan Singh and accused Ram Narain Singh were quarrelling with each other. Ram Narain Singh was armed with a Lathi, who was inflicting injuries by Lathi on the person of Niranjan Singh. In the meanwhile, Ram Narain Singh's son accused Sukhdeo Singh came there armed with a Sela and inflicted injuries by the Sela on the right thigh of Niranjan Singh. Niranjan Singh ran towards the road-side. Accused Sukhdeo Singh and Ram Narain Singh followed Niranjan Singh. Sukhdeo Singh hit another Sela blow on the left side of the chest of Niranjan Singh and on receiving this Sela injury, Niranjan Singh fell down. Gursharan Singh, Jasveer Singh and Jagsir Singh thereafter raised alarms, upon which the accused asked them not to proceed further otherwise they would be done to death. The accused thereafter ran away. After when the accused went away, Gursharan Singh, Jagveer Kaur and Jagsir Singh went near injured Niranjan Singh and saw that blood was coming out from the injuries but he was not speaking. He went to the village and called Dr. Avtar Singh, who, after seeing Niranjan Singh, declared him dead. The prosecution, in support of its-case, examined ten witnesses. The accused, in their defence, examined DW1 Gurdeo Singh. PW3 Gursharan Singh and PW4 Jagsir Singh are the two eye witnesses of the occurrence. This evidence of the eye witnesses is sought to be corroborated from the evidence of PW2 Natha Singh the other brother of the deceased whose evidence relates to the motive for commission of the crime and the motive, according to this witness, was the animosity between the accused and the deceased on account of backing-out of the deceased from transferring the land in favour of accused Ram Narain Singh which he earlier agreed to sell. PW1 Dr. Avtar Singh is a Registered Medical Practitioner, practising in Chak 1-X, who was immediately called at the place of the occurrence and when he reached there, by that time Niranjan Singh breathed his last. The evidence of these witnesses is further sought to be corroborated from the evidence of PW7 Dr. Yashpal Singh, who conducted the post-mortem on the corpose of Niranjan Singh and from the evidence of PW5 Praja Singh the Motbir witness who is a witness to the recovery of the blood-stained Lathi, Sela and the clothes of the accused. PW8 Khetpal Singh was the Constable working in Police Station, Keshrisinghpur, who, on 16-10-90, took thirteen sealed packets from the Malkhana Incharge Kanta Singh and after obtaining a forwarding letter from the Office of the Superintendent of Police, Shri Ganganagar, deposited the same for FSL examination in the State Forensic Science Labortory, Jaipur. PW9 Kanta Singh was the Head Constable and Incharge of the Malkhana of the Police Station, with whom ten packets were deposited by the SHO on 2-9-90 and four packets on 6-9-90, who gave all these fourteen packets to PW8 Khetpal Singh on 15-10-90 for taking them for FSL examination to the aforesaid Laboratory. PW 10 Hukmi Chand is he investigating officer, who, on the relevant date, was posted as the Station House Officer of the Police Station, in whose presence the report was lodged and who went at the place of the incident at 10.45 p.m. on 1-9-90; conducted the investigation, arrested the accused, made certain recoveries, prepared the site-plan etc. and after investigation, presented the challan against the accused. The learned Additional Sessions Judge, after trial, convicted and sentenced the accused-appellants as stated above. While convicting and sentencing the accused-appellants, the learned Additional Sessions Judge came to the conclusion that the murder was committed by the accused-appellants in furtherance of the common intention of both of them on account of animosity between the accused and the deceased regarding the land which the deceased Agreed to sell to accused Ram Narain Singh but later on backed-out. The learned trial Court believed the evidence of the eye witnesses PW3 Gursharan Singh and PW4 Jagsir Singh. The learned trial Court, also, came to the conclusion that the evidence of the eye-witnesses stand corroborated from the evidence of motive disclosed by PW2 Natha Singh and PW3 Gursharan Singh and the recoveries of the human-blood-stained Lathi and the Sela and the recoveries of the clothes of the accused, which contained 'O' Group of the blood, which was the blood-group of the deceased. The appellants, by way of this appeal, have challenged the judgment dated 5-3-94, passed by the learned trial Court, convicting and sentencing them as aforesaid.
3. It is contended by the learned counsel for the appellants that; (i) the FIR was lodged after due deliberation and consultation and it is a post-investigation document and the part played by the accused has not been specifically assigned in the FIR; (ii) the prosecution has not come with the true version of the case and the genesis of the occurrence is not known; (iii) the appellants had no motive to kill deceased Niranjan Singh as the deal had already been cancelled and the amount of advance returned by the deceased was accepted by accused Ram Narain, Singh; (iv) the independent witnesses of the village have not been produced and only the relative and interested witnesses, whose statements are not free from doubt, have been produced by the prosecution and relied upon by the learned trial Court; (v) the injuries found on the person of the deceased have not been disclosed by the doctor as 'sufficient in the ordinary course of nature to cause death' and, therefore, the appellants cannot be convicted for the offence under Section 302 or 302/34, IPC (vi) the evidence of PW3 Gursharan Singh and PW4 Jagsir Singh do not find support from the medical evidence -rather it stands contradicted. The prosecution came with the case that two types of weapons (Lathi and Sela) were used in the commission of the crime while the medical evidence discloses the use of three types of weapons and the Sela has not been put to the doctor to disclose that the injuries can be caused by this Sela; (vii) it was not possible for the witnesses to have seen and identified the accused from the distance from where they allege to have seen the occurrence. The learned Public Prosecutor, assisted by the learned counsel for the complainant, on the other hand, has supported the judgment passed by the learned trial Court and submitted that the accused-appellants have been rightly convicted and sentenced by the learned trial Court.
4. We have considered the submissions made by the learned counsel for the parties, perused the judgment passed by the learned trial Court and gone-through the record of the case.
5. The first question, which requires consideration, is; whether the FIR (Ex. PI) lodged at the Police Station by Gursharan Singh was lodged after clue deliberation and consultation and is a post-investigation document? The incident took-place at 8.00 p.m. and the information was lodged at 10.45 p.m. at the Police Station, which is situated at a distance of thirteen miles from the place of the occurrence. A brief narration of the incident has been given in the FIR. The FIR reached in the Court of the Magistrate on the next day at about 12.30 p.m. and the distance between the Police Station and the Court of the Magistrate is twenty-five kilometres. It is connected by the road and the rail, as has been admitted by PW10 Hukmi Chand, SHO. The FIR, in the present case, cannot be said to be registered after the investigation. The matter was immediately reported by Gursharan Singh to the police and the report was written as it was disclosed to the police by Gursharan Singh. There is no delay in sending the FIR to the Magistrate. The prosecution has not introduced any improvement or embellishment in the facts and did not set-up a distorted version of the occurrence. The FIR has been lodged at the time stated in it. The contention, raised by the learned counsel for the appellants that the FIR was not presented at the time stated in the FIR and it contains distorted version of the occurrence and has been registered after due deliberations and is a post-investigation document, are devoid of any force.
6. The second question, which requires consideration is: whether the appellants had any motive to commit the murder of Niranjan Singh and whether the trial Court was justified in believing this motive? According to the prosecution, the motive with accused-appellant Ram Narain Singh to commit the murder of deceased Niranjan Singh was that Niranjan Singh agreed to sell twenty-two Bighas of the land in favour of accused Ram Narain Singh, took Rs. 10,000/- as advance and later on he cancelled the agreement and returned the advance money. The advance money of Rs. 10,000/- was accepted by accused-appellant Ram Narain Singh, which fact has been admitted by the prosecution witnesses, also. If the accused-appellants had any grievance with the deceased regarding cancellation of the transaction then accuseds-appellant Ram Narain Singh would not have accepted the return of the advance money. Once the security amount was, accepted by (he accused, the agreement came to an end and the appellants could not have any grievance against Niranjan Singh. Accused-appellant Ram Narain Singh and deceased Niranjan Singh were the brothers, of course, the step brothers. After the close of the deal, the appellants had no reason to commit the murder of deceased Niranjan Singh due to cancellation of the transaction. The cancellation of the transaction, which was accepted by appellant Ram Narain Singh; also, did not give any cause of displeasure to the accused in order to motivate them to commit the murder of the deceased. The learned trial Court was, therefore, not justified in taking the cancellation of the transaction as the motive with the accused to commit the murder of the deceased. The prosecution to support this motive, has placed reliance over the statement of PW2 Natha Singh, who has stated that a week earlier to the date of murder of Niranjan Singh, accused Ram Narain Singh and Sukhdeo Singh, both, came to him in village Tamkot (Punjab) and informed him that Niranjan Singh has refused to transfer and deliver the possession of twenty-two Bighas of land to them and had returned the advance amount of Rs. 10,000/- which he had accepted as the security amount and they requested him to accompany them and to persuade Niranjan Singh for transfer of the land but he refused to accompany them and stated that as both are brothers and comand the same respect by him, therefore, he would not accompany them. They asked him either to persuade Niranjan Singh to deliver the land to them otherwise Niranjan Singh would be put to death. He sent the message to Niranjan Singh to be careful from Ram Narain Singh and on 12-9-90, he received the message that Ram Narain Singh and Sukhdeo, Singh had committed the murder of Niranjan Singh and, therefore, he went to village 1-X. In the cross-examination, he has admitted that accused Ram Narain Singh is his step-brother and they were four brothers and one sister from the second mother, out of whom he and Fateh Singh live in Tamkot (district Faridkot-Punjab) while deceased Niranjan Singh and Gursharan Singh were living in village 1 -X. He has also, admitted that no written agreement took place between Niranjan Singh and accused Ram Narain Singh regarding the sell of the land. He has, also, categorically stated that he did not send any information regarding the threat given by accused-appellants to Niranjan Singh nor be lodged by the report at any place. He has, alsb, stated that he did not go to village 1-X to inform Niranjan Singh to be careful from Ram Narain Singh as he had given a threat that if the deceased would not transfer the land then he would be done to death by the accused-appellants. This witness did not care to inform his brother Niranjan Singh in village 1-X regarding the threat given by the accused nor he took any action in this regard. When the deal was already finalised by returning the advance money by the deceased and accepting the same by appellant Ram Narain Singh, then there remained no dispute between the accused and the deceased and, therefore, there was no question with the accused to approach this witness and requesting him to persuade Niranjan Singh to deliver the land to them. This witness did nothing to inform Niranjan Singh about the threat given by the accused nor he did anything in this regard. Such type of evidence can be procured at any time.
7. The next point, which requires consideration, is whether the evidence of PW3 Gursharan Singh and PW4 Jagsir Singh -- the alleged eye witnesses of the occurrence - can be relied upon or not and whether they are the witnesses, on the basis of whose evidence, the accused can be convicted? PW3 Gursharan Singh is the real brother of the deceased and PW4 Jagsir Singh is the son of the deceased. They are the close relatives of the victim and their houses are not situated at the place of the incident and are situated at some distance. The altercations took-place between the deceased and the accused and the noise raised by them did not attract any person living in the nearby houses but attracted only these two witnesses and Smt. Jasveer Kaur (the widow of the deceased) as per the prosecution case. Being the close relatives of the deceased, their evidence has to be carefully scrutinized before the same can be acted upon. While considering the evidence of both these witnesses, it has to be seen: whether they were actually present at the scene of the occurrence when the incident took place or they are merely the chance witnesses and are, deposing against the accused being the step-brother nephew.
PW3 Gursharan Singh - the brother of the deceased -has stated that on the day of the incident, at about 8.00 p.m. he was coming from the house of Gurdeo Singh Bawri and when he reached in the Chowk situated near the water-pond he heard the noise from the side of the liquor shop. On hearing the noise he reached near the house of Dilair Singh and saw his sister-in-law Jasveer Kaur (widow of deceased.) and nephew Jagsir Singh there who were quarrplling regarding the return of the security money. Accused Ram Narain Singh was inflicting injuries by Lathi to his brother Niranjan, Singh, Accused Ram Narain Singh inflicted two injuries by Lathi to Niranjan Singh. In the meanwhile accused Sukhdeo Singh, (son of accused Ram Narain Singh) came there armed with the Sela and inflicted injury by the Sela on the right thigh of Niranjan Singh. Niranjan Singh requested them not to kill him and after receiving the first Sela injury, ran towards the roadside and crossed the water-course., The accused followed Niranjan Singh and when he covered the distance of about eighth feet, accused, Sukhedo Singh inflicted another Sela injury on the chest of Niranjan Singh, who, op receiving this injury, fell down on the ground. Accused Sukhdeo Singh thereafter inflicted one more Sela injury on the back side of Niranjan Singh. Ram Narain Singh inflicted injury by Lathi to Niranjan Singh. They remained standing there and did nothing. Thereafter they raised cries' Please do not kill Niranjan Singh' whereupon the accused threatened them that they too will be done to death. Thereafter the accused ran away and he, his sister-in-law and nephew went near Niranjan Singh and called him but Niranjan Singh did not give any response. He thereafter went to village and called Dr. Avtar Singh, who came there and declared Niranjan Singh dead. He has further stated that Niranjan Singh agreed to sell the land to Ram Narain Singh and Ram Narain Singh advanced a sum of Rs. 10,000/- to Niranjan Singh towards part-performance of this transaction and later-on the deal was cancelled by Niranjan Singh and he returned the advance money of Rs. 10,000/- to Ram Narain Singh and it was on account of this animosity that the accused had committed the murder of Niranjan Singh. In the cross-examination this witness has admitted that his house is situated on the Western side of the liquor, shop and the liquor shop is not visible from his house. According to him, the liquor shop is, also, not visible from the house of Gurdeo Singh Bawri. He has, also, admitted that Gurdeo Singh Bawri did not meet him in his house. In the cross-examination he has stated that when he reached there, the altercations between the accused and the deceased were going-on and Ram Narain Singh was asking the deceased why he had not transferred the land in his favour and Niranjan Singh was saying that the land is his own and he does not want to sell if to him, whereupon Ram Narain Singh inflicted two injuries by Lathi to Niranjan Singh and he heard the quarrel from the distane of 125 feet, He has, also, admitted that he saw the beatings being given by the accused to Niranjan Singh from the distance of 125 feet but he did nothirig. He has, also, admitted that the population of village 1-X is inhabited in hundred houses and the houses oppbsite and in front of the liquor shop are inhabited by various persons. The altercations took place between the accused and the deceased at the time of the incident and certain other facts narrated by him do not find place in his earlier statement. This witness has tried to make improvement from his earlier statement and according to him the injury on the thigh of Niranjan Singh was inflicted by accused Sukhdeo Singh by the Sela after Niranjan Singh had crossed the water pond while according to PW4 Jagsir Singh this injury was inflicted by accused Sukhdeo Singh by the Sela out-side the liquor shop. According to this witness, the deceased was naked and he put on the underwear on his loin. No blood was found on the clothes of this witness. This witness did not try to rescue his real brother and remained standing With out making any effort to save the deceased. He did not call any other person from the nearby vicinity for help. He is the real brother of the deceased but he did not make any effort to rescue his brother; If this witness would have been present there he would have certainly done some thing to rescue his brother.
Similar is the case with PW4 Jagsir Singh. He is the son of the deceased. According to him, he was present at the scene of the occurrence and saw the accused inflicting injuries to his Father but he did not try to rescue him. No attempt was made by this witness or his mother, who, as per the prosecution case, was, also, present there and saw the accused, inflicting injuries to Niranjan Singh. If this witness would have been present there, he would have, certainly done something to save his father. The conduct of this witness in remaining a silent spectator to the incident and doing nothing to save his father, raises a suspicion on the presence of this witness at the scene of the occurrence. If he Would haye
The version given by these two alleged eye witnesses also, does not find corroboration from the medical evidence. According to the medical evidence, three types of weapons were used by the perpetrators of the crime in inflicting injuries to the deceased while these witnesses have come with the story of using two weapons only, and moreover, the doctor has not opined that these injuries could be caused by Sela. Five injuries by sharp-edged weapon were found on the corpse of the deceased. Out of the three injuries alleged to have been caused by Lathi by accused Ram Narain Singh to the deceased, according to PW7 Dr. Yashpal Singh, injury No. 2 can be caused by a fall and, so far as injury Nos. 2 and 7 are concerned, they cannot be caused by a Lathi. The right scortum, on which this injury No. 3 was found,' is a very protected part of the body and on that part of the body, no injury can be caused by a Lathi through legs.
There is yet another aspect of the case. According to these two eye-witnesses, Smt. Jasveer Kaur, was also, present at the scene of the occurrence. She has been cited as a witness in the Calendar of Witnesses but she has not been produced in evidence by the prosecution. It was the duty of the prosecution to examine the witness whose evidence is essential for unfalding the prosecution case and the non-production of such a witness, may affect the fair trial. If this witness would have been produced by the prosecution, the cross-examination conducted on this witness would have elicited the correct facts of the case. The non-production of Smt. Jasveer Kaur, who had alleged to have seen the occurrence, by the prosecution, in our opinion, has seriously affected the truth1 of the prosecution case. If she would have been produced for cross-examination by the accused, the true facts of the case could halve been elicited.
The evidence of the alleged eye witnesses, being relatives to the deceased and interested in the caste;, their houses being not situated near the place of the' incident; their conduct at the time of the incident etc. make their presence at the scene of the occurrence highly doubtful. Their evidene, therefore, does not inspire confidence and the learned trial Court was, therefore, not justified in convicting the accused-appellants on the basis of the statements of these alleged eye witnesses.
7A. The next question, which requires consideration, is; whetner the version given by the eye witnesses is consistent with the medical evidence regarding the injuries found on the person of the deceased and whether it is materially inconsistent with the medical evidence? According to the prosecution case, as disclosed by these two alleged eye witnesses, accused-appellant Ram Narain Singh inflicted four-five injuries by the Lathi and accused-appellant Sukhdev Singh inflicted three injuries by the Sela on the person of deceased Niranjan Singh. In the initial version given by the prosecution in the FIR, two injuries were inflicted by accused Sukhdeo Singh by the Sela to deceased Niranjan Singh while, in fact, PW7 Dr. Yashpal Singh found five incised wounds caused by sharp-edged weapon and one lacerated wound, one contusion and one bruise on the corpse of the deceased. According to the doctor, injury No. 2, which is a lacerated wound found on the fore-head of the deceased, can be caused by a fall on the ground and so far as injury No. 3, which is a contusion on the right scortum, cannot be caused by the Lathi on such a protected part and it can be caused during the scuffle. Regarding injury No. 7, which is a bruise on the lower part of the left side of abdominal wall, that injury can be caused by a fall on the ground and it cannot be caused by a blunt weapon because by a blunt weaon, bruise cannot be caused. So far as injuries Nos. 2 and 7 are concerned, the doctor has specifically opined that these injuries cannot be caused by the Lathi and so far as the injury No. 3 is concerned, the doctor has opined that this injury can be caused by a fall. According to the eye witnesses, viz., PWV3 Gursharan Singh and PW4 Jagsir Singh, accused Ram Narain Singh caused four injuries by the Lathi to the deceased but the medical evidence does not support this case of the prosecution. As per the doctor, only one injury, at the most, can be caused by a Lathi.
8. Now, so far as the other injuries found on the deadbody of the deceased, are concerned, according to PW7 Dr. Yashpal Singh, there were five incised wounds and out of them two, namely, injuries Nos. 4 and 5, were on the right thigh while injuries Nos. 1 and 6 were on the chest and injury No. 7 was below the abdomen. The eye witnesses have stated that accused Sukhdeo Singh inflicted only three injuries by the Sela. Who inflicted the other injuries, has, also, not come in the evidence. Both these witnesses have stated that only one injury was inflicted on the thigh of the deceased with a Sela by accused Sukhedo Singh. PW4 Jagsir Singh has further stated that the Sela injury inflicted by accused Sukhedo Singh caused a hole on the Chaddar which the deceased was having but not hole in the Chaddar was found ana moreover two injuries were lound on the right thigh of the deceased which, also, negatives the prosecution case. The doctor has further opined that different weapons were used in inflicting injuries Nos. 1, 4, 5 and 7. From the evidence of the doctor, it is, therefore, clear that two types of sharp-edged weapons were used by the assailants to cause injuries to deceased Niranjan Singh. The Sela was, also, not put to the doctor and he has not stated that the injuires received by ,the. deceased can be caused by this Sela. The ocular testimony given by these two eyewitnesses, does not find corroboration from the medical evidence and i|t is, therefore, unsafe to base the conviction of the appellants on the basis of the evidence of the interested and relative witnesses. The evidence of these witnesses does not find corroboration from the medical evidence, also. The medjcal evidence, produced by the prosecution, completely, falsifies the alleged presence of these two witnesses at the time of the incident. The discrepancy between the medical evidence and the ocular testimony of these two alleged eye witnesses, makes the evidence of these witnesses untrustworthy.
8A. The next grievance raised by the learned counsel for the appellant is that the correct and true genesis of the occurrence has not been given by the prosecution and not a single witness from the neighbourhood of the place of the incident, who could have come at the scene of the occurrence after hearing the noise, has been produced. The prosecution came with the case that it was on account of animosity between the accused and the deceased that the deceased did not transfer the land in favour of accused Ram Narain Singh that they killed Niranjan Singh. We are unable to accept the theory and the genesis of the occurrence. The incident might have taken place in some other way and who is the perpetrator of the crime, is not known and the appellants have been implicated in the crime merely on the basis of a suspicion. If the altercations would have taken place which attracted Jasveer Kaur and Jagsir Singh from their houses then it should, also, have attracted the other neighbours of the place of the incident, whose houses are situated near the liquor shop, but none of such inhabitants has been produced, though it has been admitted by the prosecution witnesses that the nearby houses were, also inhabitated. The non-production of the independent witnesses of the neighbourhood of the place of the incident, also, raises a suspicion in the prosecution case.
9. The next question, which requires determination in the present case, is: whether the recoveries of the Sela and the Lathi, which were found stained with human-blood and the recoveries of the clothes which the accused were wearing and found containing 'O' Group of blood (the blood-group of the deceased) connect the accused with the crime and whether these recoveries have been rightly believed by the learned trial Court? The recoveries made in this case raise a suspicion in the prosecution case. No independent witness of the, village is a witness to these recoveries. PW5 Praja Singh and Jaswant Singh are the two Motbir witnessed to these recoveries. Jaswant Singh - the Motbir witness - has not been produced by the prosecution. PW. 5 Praja Singh is the brother-in-law of the deceased and is not a resident of this village but he is a resident of village 27-BB. These recoveries were made by PW 10 Hukmi Chand, SHO. who was the investigating officer in the case. This witness has nowhere stated before the trial Court that the seals on these articles, recovered by him, remained intact till the articles were deposited in the Malkhana. He has only stated that the incriminating articles were kept safely in the Malkhana and sent for FSL examination: from the safe custody. He has nowhere stated that the seals on these articles remained intact through-out. There is another discrepancy, also, PW. 8 Khetpal Singh has stated that he took thirteen sealed packets on 16-10-90 and deposited the same at the Laboratory after obtaining the forwarding letter from the Office of the Superintendent of Police, while PW. 9 Kanta Singh (the Malkhana Incharge) has stated that on 15-10-90, he handed-over fourteen packets to PW8 Khetpal Singh. The receipt Ex. P29 dated 17-10-90, issued by the State Forensic Science Laboratorty, Jaipur, shows that thirteen packets were received by it. Where the 14th packet gone, has not been explained by the prosecution. According to PW9 Kanta Singh, fourteen packets were taken by Khetpal Singh on 15-10-90, who converted these fourteen packets into thirteen packets is not known. Moreover, the Register maintained by the Malkhana Incharge of the Police Station does not show the delivery of these articles by PW. 9 Kanta Singh to PW. 8 . Khetpal Singh. In the cross-examination, PW9 Kanta Singh has admitted that the entries have not been made regarding the delivery of the articles to PW8 Khetpal Singh because it is the general practice that the entries are made only after the receipt from the FSL Laboratory. The Malkhana articles in the present case have been entered in the Malkhana Register at Serial Numbers 286 and 288. The recoveries of the articles entered at Serial Number 286 were made by PW. 10 Hukmi Chand, SHO, on 2-9-90 while the articles, which were deposited in the Malkhana and entered at Serial Number 288 in the Malkhana Register, were recovered on 6-9-90. The entry at the Serial Number 287 of the Malkhana Register relates to 4-9-90 and the entry at Serial Number 289 relates to the articles deposited in the Malkhana on 5-9-90 While the articles entered at Serial Number 288 were recovered on 6-9-90. How this recovery of 6-9-90 was entered in between 4th and 5th September, is not explained. The Malkhana Register 'kept at the Police Station, therefore, appears to be 'not proper1y maintained and the entries have been made in the Malkhana Register at the convenience of the Malkhana Incharge of the Police . Station. The Malkhana Register, maintained at the Police Station, does not inspire confidence. The false entries appear to have been made by the Malkhana Incharge at the instance of the Station House Qfficer. It appears that these recoveries have been mads earlier than the dates shown in the recovery memos Exs. P15 to Ex. P17. These recoveries, therefore cannot be said to have been made on the information and at the instance of the accuscd-appeltants. The recoveries had already been made by the investigating officer and the documents regarding the recoveries, i.e., the information and ecovery memos, have later on been prepared and, therefore, the independent witnesses were not called and only the relative and interested witnesses were made the witnesses to the recoveries. The recoveries of these alleged incriminating articles, therefore, do not inspire confidence. The learned trial Court was, therefore not justified in believing this circumstance as the incriminating against the accused-appellants.
10. The prosecution has, therefore, failed to prove the case against the accused-appellants beyond reasonable manner of doubt and the appellants, therefore, deserve to be acquitted.
11. In the result, the appeal, filed by accused-appellants Ram Narain Singh, and Sukhdeo Singh, is allowed. The judgment dated 5-3-94, passed by the learned Additional Sessions Judge No. 1, Shri Ganganagar, convicting and sentencing the appellants, is set aside and the appellants arc acquitted of all the charges for which they were charged and tried by the trial C,ourt. They are in jail and be released forthwith if they arc not required in any other case.