Sandeep Mehta, J.
The appellant herein stands convicted and sentenced as below vide judgment dated 08.07.2014 passed by learned Sessions Judge, Balotra in Sessions
Case No.45/2012:
Section 302 Life Imprisonment with fine of Rs. 5000/-, in default of payment of fine to further undergo six months’ imprisonment.
Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C. Facts in brief are that
Umed Singh (PW-16) lodged a written report (Ex.P/23) to the SHO PS Siwana on 11.08.2012 at 7:20 PM inter alia alleging that his brother Chatar
Singh had gone from his Krishi Farm to Ramaniya Village on the previous evening at 4 O’ Clock. On 11.08.2012, people informed him that a dead
body was lying on the road going to Mamaji Wala Jaav. On this information, he rushed to the scene of occurrence. The villagers and In-charge, Police
Outpost Mokalsar were present there. They asked the first informant to identify the dead body. The head of the dead body was chopped off and the
intestines were coming out. The first informant identified the dead body to be of his brother Chatar Singh on the basis of the clothes available on the
body. The first informant alleged that some unknown person had murdered his brother. This report was forwarded to the Police Station Sewana
where an FIR No.131/2012 was registered on 11.08.2012 at 9:15 pm for the offence under Section 302 IPC. Shri Umed Singh submitted yet another
report to SHO PS Siwana on 12.08.2012 at 3.45 PM inter alia alleging that he had submitted a written report regarding the murder of his brother Shri
Chatar Singh on 11.08.2012 whereafter Devi Singh S/o Shri Jawan Singh Rajput R/o Ramniya told him that in the night he (Devi Singh) and Narpat
Singh S/o Shri Migraj were proceeding towards the village on a tractor at about 11 O’ clock when they saw the deceased Chatar Singh and
Kaluram standing at Mamaji Wala Jaav. The accused appellant Kaluram was grappling with the deceased Kaluram. He was having an axe in his
hand. Devi Singh and Narpat Singh thought that these persons might be intoxicated and therefore, they did not stop there. The first informant Umed
Singh expressed a suspicion that Chatar Singh must have been murdered by Kaluram with the blows of the axe he was holding. The accused appellant
was arrested on 13.08.2012 vide arrest memo (Ex.P/28). In furtherance of the information supplied by the accused, the axe and the blood stained
dhoti allegedly worn by him at the time of the incident were recovered. After completion of investigation, the police proceeded to file a charge sheet
against the accused appellant for offence under Section 302 IPC. Since the offence under Section 302 IPC was exclusively sessions triable, the case
was committed to the Court of Sessions Judge, Balotra where charge was framed against the accused appellant for offence under Section 302 IPC to
which he pleaded not guilty and claimed trial. The prosecution examined as many as 21 witnesses in support of its case. The accused upon being
examined under Section 313 Cr.P.C denied the prosecution allegations but did not lead any evidence in defence. After hearing the arguments
advanced by the defence and the prosecution and upon appreciating the evidence available on record, the learned Sessions Judge proceeded to convict
and sentence the appellant as aforesaid, by the impugned judgment dated 08.07.2014. Hence, this appeal.
Learned Counsel Shri Pritam Solanki, representing the appellant vehemently and fervently urged that there is no evidence worth the name on record
of the case so as to connect the appellant with the alleged crime. The FIR (Ex.P/23) was lodged against unknown persons. Thus, the second report
(Ex.P/24) submitted by Shri Umed Singh to the SHO PS Siwana on 12.08.2012 could not have been admitted in evidence as the same is hit by Section
162 Cr.P.C. He further submitted that all the three witnesses who claim to have seen the accused and the accused together are cooked up witnesses,
inasmuch as, had they seen the appellant with the deceased Chatar Singh any time soon before his death, then they definitely would have disclosed
this fact to the first informant because admittedly, the FIR was lodged in presence of these witnesses. As per Shri Solanki, the conduct of these
witnesses i.e,. Narpat Singh (PW- 15) & Devi Singh (PW-20) in not disclosing to the first informant or the police officials that they had seen the
accused appellant grappling with the deceased in the night of 10.08.2012 makes it clear that the witnesses are created only. He further urged that
even if the evidence of PW-11 Smt. Bebu Kanwar (wife of the deceased Chatar Singh) and PW-21 Bhanwar Singh (owner of the liquor shop) is
accepted that the appellant had left the house of the deceased in his company and that both of them purchased liquor from the shop of Bhanwar Singh,
manifestly no inference of guilt can be drawn against the accused appellant as, firstly Smt. Bebu Kanwar has stated that her husband and the accused
left the house together in the evening at 4 O’ Clock happily. In her cross examination, she admitted that she had no suspicion whatsoever on
accused appellant Kaluram. He, thus urged that the inference of motive which learned trial court drew based on the conjectural aspersion in the
statement of Smt. Bebu Kanwar that a quarrel had taken place between Kaluram and her husband previously is absolutely unfounded, inasmuch as,
had there was any animosity between the deceased and the appellant, then the deceased would not have gone with the appellant happily and both
would not have purchased liquor together from the shop of PW-21 Bhanwar Singh. Regarding the recovery of blood stained axe and clothes of
accused, the contention of Shri Solanki was that the FSL report cannot be read in evidence because firstly the recoveries were falsely foisted on the
appellant and secondly as per Shri Solanki, the recovered articles were forwarded to the FSL after more than twenty days and no explanation is
forthcoming for this significant delay leading to the FSL report becoming redundant. He thus, craves acceptance of the appeal while setting aside the
impugned judgment of conviction and sentences.
Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by learned Counsel for the appellant. He
contended that the fact regarding the accused having been seen in the company of deceased Chatar Singh soon before his death is clearly set out in
the written report (Ex.P/24) lodged by Shri Umed Singh to the SHO PS Siwana. He further urged that there is no reason to discard this report or the
statements of PW-15 Narpat Singh & PW-20 Devi Singh who gave convincing evidence to the effect that they saw the accused Kaluram and
deceased Chatar Singh grappling with each other near the Mamaji Wala Jaav in night at 11 O’ Clock & the dead body of Chatar Singh was
recovered nearby on the next day. As per learned Public Prosecutor, these witnesses had no animosity with the accused appellant so as to instigate
them to give false evidence against him. He, thus craves dismissal of the appeal.
We have given our thoughtful consideration to the arguments advanced at bar by both the parties and carefully perused the impugned judgment.
The prosecution case is founded on purely circumstantial evidence. Three sets of evidence which the prosecution have projected so as to bring home
the guilt of the accused can be summarized as below:
(1) Motive (2) Last seen & (3) Recoveries We are of the opinion that the approach of the trial court in treating the report (Ex.P/24) as admissible in
evidence is per se illegal. It is an admitted position that Umed Singh had lodged report of the incident with the SHO PS Siwana on 11.08.2012 itself
and FIR No.131/2012 was chalked out on the basis thereof. In this background, any subsequent report submitted by Shri Umed Singh could be at best
treated to be a statement under Section 161 Cr.P.C and could not have been admitted in evidence by marking exhibit thereupon. Thus, the approach of
the trial court in allowing the prosecution to mark exhibit upon this report is contrary to the settled legal principles and the report could not have been
read in evidence.
The witnesses PW-2 Babulal, PW-11 Smt Bebu Kanwar, PW-15 Narpat Singh, PW-20 Devi Singh & PW-21 Bhanwar Singh were examined by the
prosecution in an endeavor to establish the circumstance of last seen against the accused appellant. Suffice it to say that PW-11 Smt. Bebu Kanwar
clearly stated that the accused appellant and her husband left the house together in a congenial atmosphere at about 4 O’ Clock. She admitted that
her husband had called accused appellant Kalu Ram for doing labour job. Kaluram took food and then he as well as her husband left the house
happily. The theory of motive which this witness has alleged in her testimony is per se unconvincing for the reason that had there been any prior
dispute between the accused appellant Kaluram and the deceased Chatar Singh, then there was no reason as to why he would call Kaluram for doing
the farming job. Thus, we have no hesitation in holding that the prosecution has failed to prove its aspersion regarding the accused appellant having a
motive to kill the deceased Chatar Singh. The trial court committed grave error in holding that the accused appellant had a motive to kill the deceased.
The witness PW-21 Bhanwar Singh stated that Chatar Singh came to his liquor shop at about 4 O’ Clock and purchased three quarters of
country-liquor. Thereafter the accused appellant Kaluram and the deceased Chatar Singh both came together and again purchased three quarters of
country-liquor. The witness categorically admitted in his cross examination that the deceased Chatar Singh was happy on both the occasions when he
came to his shop to purchase liquor. Thus, from the statements of PW-11 Smt. Bebu Kanwar & PW-21 Bhanwar Singh all that can be inferred is that
the accused appellant Kaluram was called by deceased Chatar Singh to do labour jobs in his field and that both of them left the house and went to the
liquor shop of Bhanwar Singh and both were happy when they purchased liquor. The witness Bhanwar Singh did not notice any kind of agitation
between the accused and the deceased when they purchased the liquor from his shop. The witnesses PW-2 Babu Lal & PW-15 Narpat Singh & PW-
20 Devi Singh claimed to have seen the accused and the appellant together at 8:00-8:30 pm and 11:00 pm respectively. PW-15 Narpat Singh even
went to the extent of alleging that the accused and the deceased were grappling with each other. However, Babulal, Narpat Singh and Devi Singh
were all present at the spot where the dead body of Shri Chatar Singh was recovered and the requisite formalities of preparation of Panchnama were
carried out by the police. None of these witnesses divulged to the police officials that they had seen the accused and the appellant together between
8:00-8:30 pm and 11:00 pm respectively on the day before the dead body was recovered. In this background, the conduct of the witnesses in keeping
silent before the police and not disclosing that they had seen the accused and the deceased together quarreling with each other makes their evidence
doubtful and unworthy of credence. Therefore, we have no hesitation in holding that the prosecution could neither prove motive to commit murder
against the accused appellant nor it could prove that the deceased was last seen in the company of the accused.
The only remaining circumstance which the prosecution relied upon so as to bring home the guilt of the accused was that of the recovery of the blood
stained axe and the clothes of the deceased and the accused. Suffice it to say that these articles were recovered between 11.08.2012 to 13.08.2012
and were forwarded to the FSL as late as on 04.09.2012. We have carefully perused the statements of PW-8 Prem Kumar (Malkhana Incharge).
The axe and the clothes of the accused were recovered on 13.08.2012 & 14.08.2012 respectively. However, as per this witness, these articles were
deposited with him on 16.08.2012 & the articles were sent to the FSL as late as on 03.09.2012. Thus, there is a grave discrepancy regarding the safe
keeping of the articles before the same were forwarded to the FSL.
In this background, the recoveries made at the instance of the accused become doubtful and as a consequence, we are not inclined to place reliance
on the FSL report as an incriminating evidence against the accused appellant.
In wake of the above discussion, we are of the opinion that the prosecution has failed to prove even a single of the three circumstances relied upon by
it so as to bring home the guilt of the accused appellant. As a consequence, we deem it fit to accept the appeal by extending benefit of doubt to the
appellant. Accordingly, the appeal deserves and is hereby allowed. The impugned judgment dated 08.07.2014 passed by learned District & Sessions
Judge, Balotra in Sessions Case No.45/2012 is hereby quashed and set aside. The accused appellant is in custody. He be released forthwith, if not
wanted in any other case.
