Ajit Singh, J.
Appellant Raju alias Rajesh alias Topa, the sole accused in this case, has been convicted under Sections 302 and 397 of the Indian Penal Code
and sentenced to imprisonment for life and seven years respectively (both sentences to run concurrently) by 1st Additional Judge to the Court of
Sessions Judge, Bhopal, vide impugned judgment dated 6-5-1991 for causing the murder of Jagannath Patel and robbing Rs. 500/- from his wife
Bardi Bai (P.W. 1). Appellant has been found guilty of causing fatal injuries on the deceased by means of an axe and robbing Rs. 500/- from Smt.
Badri Bai (P.W. 1) at 9.30 p.m. on 20-12-89 in the farm house of Sayyad Mustafa alias Achhe Mia.
Briefly stated facts giving rise to this appeal are as under :--
About three years prior to the date of incident, Jagannath (since deceased) and his wife, Smt. Bardi Bai (P.W. 1) were employed by Sayyad
Mustafa (P.W. 7) as a care-taker of his farm. Sayyad Mustafa (P.W. 7) himself resided at Bhopal whereas his farm is situated at Village Pipalner,
Gandhi Nagar, Bhopal. For Jagannath and his wife, Smt. Bardi Bai (P.W. 1), he even provided a small three room farm house for residence.
Latcron, about one month prior to the date of incident, Sayyad Mustafa (P.W. 7) also employed appellant in his same farm as a labour and
allowed him to live with Jagannath and his wife, Smt. Bardi Bai (P.W. 1) in their house. Appellant even shared meals with them.
On 20-12-89 sometime in the afternoon, Sayyad Mustafa (P.W. 7) visited his farm house from Bhopal and paid wages to the appellant and
Jagannath. Lateron, in the evening both of them went to Bairagarh and purchased liquor and meat. While Jagannath and appellant were taking
liquor and cooking the meals for dinner in the farm house, Smt. Bardi Bai (P.W. 1) slept in the ""Dalhan"" as she was having fever. It is alleged that
at about 9.30 p.m. appellant assaulted Jagannalh with an axe and killed him. Thereafter, he went to another room of the farm house where Smt.
Bardi Bai (P.W. 1) was sleeping and caused injuries to her and robbed Rs. 500/-. It is further alleged that the appellant after the incident went to
the house of Sayyad Mustafa (P.W. 7) in the mid-night at Bhopal and made an extra-judicial confession before him in the presence of his wife Smt.
Sarvar (P.W. 2). After that Sayyad Mustafa (P.W. 7) called his neighbour, Riyazuddin (P.W. 19) before whom also the appellant is alleged to
have made an extra-judicial confession. Both, Sayyad Mustafa (P.W. 7) and Riyazuddin (P.W. 19) took the appellant to the Police Station,
Parvalia Sadak in their jeep where the First Information Report (Ex. P-34), in the form of his confession was recorded by the Assistant Sub-
Inspector, Shri M.K. Mishra (P.W. 18), an Investigating Officer of the case.
Mr. M.K. Mishra (P.W. 18) immediately rushed to the place of incident along with Sayyad Mustafa (P.W. 7), Riyazuddin (P.W. 19) and the
appellant. At the place of incident, he prepared a Panchayatnama (Ex. P-2), of the body of Jagannath and spot map (Ex. P-22). Thereafter, he
sent the body of Jagannath for post-mortem and Smt. Bardi Bai (P.W. 1) for her treatment to Hamidia Hospital, Bhopal Mr. M.K. Mishra (P.W.
18) recorded the discovery statement (Ex. P-28) of appellant and allegedly seized an axe vide Ex. P-29, from a hidden place of the aforesaid farm
house. Mr. M.K. Mishra (P.W. 18), also seized Rs. 500/- vide Ex. P-24 and blood stained clothes (Ex. P-26), from the possession of appellant.
Seizure memo of the nails of appellant prepared by Mr. M.K. Mishra (P.W. 18) is Ex. P-25 who ultimately arrested him on 21-12-89 at 1.30
p.m. vide arrest Panchnama Ex. P-23.
Dr. D.S. Badkul (P.W. 17) conducted the post-mortem of the deceased, Jagannath. He in his report (Ex. P-43), gave an opinion that the death
was due to shock and haemorrhage as a result of injuries to the neck and that death was homicidal in nature. He also opined that the death was
caused by a sharp cutting heavy object. The injury on the person of Smt. Bardi Bai (P.W, 1) were, however, reported to be simple in nature by
Dr. K.N. Agarwal (P.W. 20) and Dr. R. Mandal (P.W. 21) in their injury reports, (Ex. P-45, Ex. P-46) respectively. Dr. G.S. Kanwar (P.W. 14)
also confirmed that no fracture was found in any of the X-ray plates of Smt. Bardi Bai (P.W. 1).
The appellant in his defence pleaded that he is innocent and has been falsely implicated. He also pleaded that, in fact, it was one Ramesh, another
employee of Sayyad Mustafa (P.W, 7) who had committed the offence and that he was even arrested by the police but Sayyad Mustafa (P.W. 7)
managed his release and instead implicated him.
The Trial Court relying upon the evidence of Smt. Bardi Bai (P.W. 1) and an extra-judicial confession allegedly made by the appellant, convicted
him u/s 302 of the Indian Penal Code for committing the murder of Jagannath and u/s 397 of the Indian Penal Code for robbing Rs. 500/- from
Smt. Bardi Bai (P.W. 1). The Trial Court also believed the recovery of weapon of offence i.e., axe from the possession of appellant and also
recovery of Rs. 500/- as an amount robbed from Smt. Bardi Bai (P.W. 1). However, here it is relevant to mention that the confessional First
Information Report (Ex. P-34) of the appellant to the Police Officer Mr. M.K. Mishra (P.W. 18) was not used against him by the Trial Court and
rightly so, in view of the judgment of the Supreme Court in N.P. Thirugnanam (D) by L.Rs., Vs. Dr. R. Jagan Mohan Rao and others, .
Learned Counsel for the appellant challenged the conviction of appellant on the ground that the Trial Court ought to have disbelieved the evidence
of Smt. Bardi Bai (P.W. 1) as she was, in fact, not an eye-witness and was actually sleeping at the time of incident: It was further argued that the
Trial Court ought to have disbelieved the extra-judicial confession allegedly made by the appellant before Sayyad Mustafa (P.W. 7), his wife, Smt.
Sarvar (P.W. 2) and neighbour Riyazuddin (P.W. 19). The learned Counsel further argued that the evidence of recovery of weapon of offence and
Rs. 500/- from the possession of appellant was fake and planted and hence has no credibility. It was also argued that on none of the alleged seized
articles from the possession of appellant, human blood has been found which itself leads to the conclusion regarding his innocence.
We have heard the arguments on behalf of appellant and respondent, State, and have perused the available records and are, however, unable to
agree with the Trial Court that the prosecution has proved the guilt of the appellant beyond all reasonable doubt.
Smt. Bardi Bai (P.W. 1} has been examined by the prosecution as the sole eye-witness in the case. In her entire evidence in the Court, she has
nowhere stated that she actually saw the appellant assaulting the deceased Jagannath. She has admitted that at the time of incident she was having
fever and hence, was sleeping outside at the ""Dalhan"" of the house. She has also admitted in her evidence that she was asleep when the appellant
and deceased had returned from the market and were preparing meat. She has, however, stated that she opened her eyes when the appellant
assaulted her. Her this part of the evidence cannot be accepted as admittedly, the appellant was well known to Smt. Bardi Bai (P.W. 1) and
perusal of the injury report of Bardi Bai (P.W. 1), Ex. P-46, prepared by Dr. R. Mandal (P.W. 21) makes it clear that she was, in fact, assaulted
by some unidentified person. Dr. R. Mandal (P.W. 21) has specifically deposed in his evidence that at the time of her examination, Smt. Bardi Bai
(P.W. 1) was fully conscious and the injuries on her person were simple in nature. According to him, he had enquired from her about the name of
person who had assaulted her and in reply she stated that she was assaulted by some unknown persons. Dr. R. Mandal (P.W. 21) had medically
examined Smt. Bardi Bai (P.W. 1) at about 3.45 hours on 21-12-89. At that time he was posted as Assistant Surgical Specialist - R.S.O. in the
Department of Surgery, Hamidia Hospital, Bhopal. Smt. Bardi Bai (P.W. 1) was admittedly referred to the Hamidia Hospital for her treatment by
the police. Thus, even the police also did not know at the time of her examination by Dr. R. Mandal (P.W. 21) as to who was responsible for the
crime. Dr. R. Mandal (P.W. 21) in his injury report (Ex. P-46), has very categorically mentioned in the column of history of patient ""assault by
some unidentified persons at 11.00 p.m., Gandhi Nagar (Parvilia Sadak)"". Furthermore, even in the police requisition form (Ex. P-42), prepared
by the police for the medical examination of Smt. Bardi Bai (P.W. 1) it is specifically mentioned that some unknown person has caused the injury
on the head of injured Smt. Bardi Bai (P.W. 1). All these circumstances make the evidence of Smt. Bardi Bai (P.W. 1) very suspicious and hence
the same cannot be relied at all. Had the appellant was the assailant his name would have definitely been mentioned in the police requisition memo
(Ex. P-42), and injury report of Smt. Bardi Bai (Ex. P-46) prepared by Dr. R. Mandal after her medical examination. Thus, we are left with no
option but to hold that Smt. Bardi Bai (P.W. 1) could not actually identify the assailant and her evidence in this case against the appellant is
unworthy of any credit. Consequently, the evidence of Ramesh (P.W. 3) is of no consequence. Even otherwise, he was declared hostile as he did
not .support the prosecution case.
According to the prosecution, the appellant immediately after the incident went straight to the house of Sayyad Mustafa (P.W. 7) to Bhopal in the
mid-night and made an extra-judicial confession before him about the crime in the presence of his wife, Smt. Sarvar (P.W. 2) and neighbour,
Riyazuddin (P.W. 19), We have carefully perused the evidence of Sayyad Mustafa (P.W. 7), Smt. Sarvar (P.W. 2) and Riyazuddin (P.W. 19)
and have noticed several discrepancies regarding the persons to whom the confession was made and what precisely was said by the appellant.
Smt. Sarvar (P.W. 2) has stated in her evidence that the appellant had come to her house at 2 O''clock in the night and confessed before her
husband, Sayyad Mustafa (P.W. 7) in her presence that he has killed Patel (Jagannath) and Patelin (Smt. Bardi Bai, P.W. 1). She has also stated
that her husband, Sayyad Mustafa (P.W. 7) did not ask him about the reason for murdering them. On the other hand, Sayyad Mustafa (P.W. 7)
has slated in his evidence that appellant had come to his house at about 12 O''clock in the night and confessed that he has killed both Patel
(Jagannath) and Patelin (Smt. Bardi Bai, P.W. 1) with an axe. Sayyad Mustafa (P.W. 7) has also deposed that on an enquiry by him regarding the
reason for killing, the appellant staled that Jagannath Patel was drunk and was not giving him good food and that he also used to abuse him.
Sayyad Mustafa (P.W. 7) has further deposed in his evidence that after the confession of appellant before him he called his neighbour, Riyazuddin
(P.W. 19) who also asked the appellant as to what has happened and before him also he made the same confession. Here it is relevant to mention
that Sayyad Mustafa (P.W. 7) has nowhere stated about the presence of his wife Smt. Sarvar (P.W. 2) at the time of making of confession by the
appellant. Further, Sayyad Mustafa (P.W. 7) did enquire from the appellant about the reason for committing the offence which has been denied by
Smt. Sarvar (P.W. 2). Moreover, the evidence of Smt. Sarvar is silent about the weapon of offence used by the appellant whereas it is not so in
the evidence of her husband, Sayyad Mustafa (P.W. 7). Riyazud-din (P.W. 19) has stated in his evidence that when he had reached the house of
Sayyad Mustafa (P.W. 7) he saw the appellant confessing before him about his murdering Jagannath and his wife Smt. Bardi Bai (P.W. 1) and that
he was also holding his feet and requesting to save him. Riyazuddin (P.W. 19) has clearly admitted in his evidence that he was present at the time
of confession by the appellant before Sayyad Mustafa (P.W. 7) and the appellant did not confess separately before him. The evidence of
Riyazuddin (P.W. 19) thus further contradicts the evidence of Sayyad Mustafa (P.W. 7) regarding the making of extra-judicial confession by the
appellant.
Thus, in view of the aforesaid several discrepancies regarding the persons to whom the confession was made, the time when the confession was
made and what precisely was said by the appellant, it is very difficult for us to believe the extra-judicial confession which has been retracted by the
appellant. There is also nothing on record to show that appellant had any reason to take them into confidence and believe that they would save him
from trouble. We are not impressed with the evidence of Sayyad Mustafa (P.W. 7), his wife Smt. Sarvar (P.W. 2) and neighbour, Riyazuddin
(P.W. 19) that the appellant made an extra-judicial confession to them. Furthermore, it is also doubtful that the appellant after committing the
murder and particularly robbery of Rs. 500/-would go all the way to Bhopal in the cold wintry mid-night of December and confess before Sayyad
Mustafa (P.W. 7), his wife Smt. Sarvar (P.W. 2) and neighbour, Riyazuddin (P.W. 19).
Mr. M.K. Mishra (P.W. 18) vide Ex. P-22 prepared a spot map on 21-12-89 at about 10.30 p.m. In the said map an axe is clearly shown as a
weapon of offence lying openly at the place of incident. It is, thus, very difficult to believe that an axe was ever recovered from the possession of
appellant on the basis of his discovery statement (Ex. P-28). Furthermore, neither in the axe nor in any of the articles seized from the appellant,
presence of human blood has been reported. Moreover, it has come in the evidence of Sayyad Mustafa (P.W. 7) that he had paid the wages to
appellant in the afternoon of the date of incident and, therefore, merely because of the recovery of Rs. 500/- from his possession it cannot be said
that he had robbed the same from Smt. Bardi Bai (P.W. 1).
For the above reasons, we, therefore, allow the appeal and set aside the conviction of the appellant and sentence awarded to him. He is acquitted
of the charges under Sections 302 and 397 of the Indian Penal Code. He be set at liberty forthwith if not wanted in connection with any other
case.