C. Honniah, C.J.
1. Fourteen persons were prosecuted for various offences, the main officer being under Section 302 of the Indian Penal Code The learned Additional Sessions Judge, Sikar, by his judgment dated January 4, 1975, acquitted two accused persons not named in the First Information Report and convicted the twelve accused, who are appellants before us, and sentenced each of them to imprisonment for life and to pay a fine of Rs. 100/ in default to undergo 3 months, rigorous imprisonment They were also convicted under Section 148 IPC and sentenced to undergo to 3 years' rigorous, imprisonment, and directed the substantive sentences to run concurrently.
2. The case of the prosecution was that there was enmity between the Rajputs of Nare village and Minas of Sanwaipura. On June 12, 1973 in the morning, Cbhotu (deceased) belonging to the community of Mina, went to a quarry outside the village m order to extract stones. When he was so working 15 persons of Rajput community, consisting of the appellants, attacked him with swords, Farsis, axes & clubs. Chhotu ran toward his land crying The appellants and others chased him to a distance of 4 to 5 furlongs and ultimately caught him in his own field where Mala Ram (P.W. 9), nephew of Chhotu was working. Surja (P.W. 10), brother of Chhotu was also in the nearby field. It was alleged that appellants and others made a murderous assault on Chhotu causing him 11 injuries and ran away from the snot Mala Ram (PW. 9) and Surja (PW. 10) went to the spot 3 found Ghhotu lying in a pool of blood. They removed Chhotu to the village, where, according to the prosecution, he made a dying declaration to Mool Chand (PW 1) which was reduced into writing as per Ex. P.3. Soon thereafter, Chhotu died Mala Ram (PW 9) ran a distance of 11 miles and went to the police station Thoi and there he lodged the complaint Ex. P.1 at about 11.30 am It was said that the Station House Officer was not in the police station and after his arrival in the afternoon, a case was registered against 15 persons. The accused were arrested during the course of investigation and on completion of the investigation, a case was put against 14 persons omitting three persons named in the First Information Report and implicating two persons who were not named in the Report.
3. In this case, there is satisfactory evidence that the Rajputs of village Nare were on inimical terms with Minas of Sanwalpura and that was not seriously disputed by the accused.
4. Prosecution placed reliance mainly on the evidence of Mala Ram (PW. 9) and Surja (PW. 10). Mala Ram (PW. 9) did not mention the name of Surja (PW 10) in the complaint as the person who witnessed the incident. From the evidence of Mala Ram (PW. 9), it can be gathered that Surja (PW. 10) was in the neighbouring field and that after the assault on Chhotu, both of them removed the injured to the village. That is also the evidence of Surja (PW 10). If really, Surja (PW. 10) was present there, Mala Ram (PW. 9) would not have failed to mention his name in Ex. P.1 as the witness to the recurrence. Therefore, it is clear that Surja (PW. 10) has been thought of subsequently to figure as a witness. So far as Mala Ram (PW. 9) is concerned, from his own evidence, we are of the opinion that he is an unreliable witness and no reliance could be placed on him. As stated by the prosecution, Chhotu had gone to extract stones from the quarry when large number of persons came there with avowed object of murdering him. It is difficult to believe that they would have allowed him to run a distance of 4 5 furlongs to be attacked in the land where Mala Ram (PW. 9) was present. In that case, the story of Mala Ram (PW. 9) that he heard cries of Chhotu cannot be beiieved. Mala Ram (PW. 9), no doubt, has given evidence stating how all the 15 persons surrounded Chhotu and delivered blows on. But significantly, the doctor found only 11 injuries. Mala Ram (PW. 9) has stated that when he went near Chhotu, he found him lying in a pool of blood; but curiously enough, no evidence is forthcoming to probiblise that the earth at that place was stained with human blood. The report of serologist does not help the prosecution. It is therefore, clear that the story given out by Mala Ram (PW. 9) and Surja (PW. 10) that the incident happened in the field, cannot be believed If Mala Ram (PW. 9) and Surja (PW. 10) had removed Chhotu who was bleeding, their clothes would have become stained with blood. That would have been a very significant circumstance to probablise the presence of these two witnesses at the scene of occurrence. No such evidence has been produced in this case. Therefore, the learned Sessions Judge was wrong in placing reliance on the evidence of these two prosecution witnesses.
5. So far as the dying declaration is concerned, it is said that in the village Chhotu made a dying declaration which was recorded by Mool Chand (PW. 1). The learned Sessions Judge, dealing with dying declaration, has stated that no reliance could be placed on that for which he has given very good reasons to discard the dying declaration.
6. For the reasons stated, the prosecution has failed to make out a case against any of the accused. We, therefore, allow this appeal, set aside the judgment and order of conviction passed by the lower court and acquit them all. It is directed that all the accused persons, who are in jail, be set at liberty forthwith.