JUDGMENT 1. - These are two appeals against the judgement of the learned Additional Sessions Judge, Tonk dated 16th Appeal 1971, whereby the accused-appellant Radha Kishan was convicted and sentenced under section 302 Indian Penal Code to imprisonment for life. The other accused Sahdeo was acquitted of the charge framed against him. The State has filed an appeal against the acquittal of Sahdeo, while the accused appellant Radha Kishan has filed an appeal against his conviction. As both these appeals arise out of the same judgement, they are being disposed of by this single judgement. 2. The facts of the case, in brief, are that Jagannath Meena, resident of village Nagadia was married to Mst. Motia about 20 years before the date of the occurrence. As no child was born out of this union, Jagannath contracted, 'nata' with another woman whose name was also Motia. After this 'nata' the previous wife was commonly known as "Badi Motia" and the second wife as "Chhoti Motia". On the night of 3rd January, 1971, it is alleged, Jagannath went to the house of the Badi Motia with a special dish of meat, and had returned to the house of Chhoti Motia, after Badi Motia had her meals. On the morning of 4th of January, 1971 when in the morning, Jagannath came to the house, where Badi Motia lived to untie his bullocks he found that the Badi Motia was missing. Reports were made to search Badi Motia in the village. Search was also made in the neighbouring village; but she could not be traced out. On 12th January, 1971, Prema and Gopal who were grazing sheep and goats, noticed some vultures hovering in the sky near a place known as "Gadri Talai"{. When they went there, they found a portion of human leg emerging out of sand. Gopal remained there; while Prema went to inform Jagnnath about this. Jagnnath after having made some arrangements to call his brother Raghunath from Kaleda on phone, came to the spot. On 13th January, 1971 Raghunath lodged a report with the police regarding the murder of Badi Motia. After the investigations, the accused-appellant Radha Kishan and Sahdeo were challenged under Sections 302, 201, 404/34 and 404 Indian Penal Code, and committed to face their trial in the Court of Sessions. 3. On 13th January, 1971 Raghunath lodged a report with the police regarding the murder of Badi Motia. After the investigations, the accused-appellant Radha Kishan and Sahdeo were challenged under Sections 302, 201, 404/34 and 404 Indian Penal Code, and committed to face their trial in the Court of Sessions. 3. On behalf of the accused-appellant Radha Kishan it was contended that there is no direct evidence implicating the accused-appellant Radha Kishan for the murder of Badi Motia. It was also contended that the information given to the police under Section 27 of the Indian Evidence Act was also not in conformity with the requirements of that section, and the recovery made in consequence there of does connect the accused-appellant with the murder of Badi Motia. It was also contended that there is evidence on record suggesting that Badi Motia had illicit-connections with Madadeo, and that Badi Motia gave something to eat to Jagnnath which resulted in the loss of his speech. It was, therefore, suggested that Badi Motia might have been sore as a result of 'nata' of Chhoti Motia with Jagannath and also on account of the fact that Jagannath did not relish, and was objecting to the continuance of illicit connection of Badi Motia with Mahadeo. 4. On behalf of the State, it was contended that the recovery of the clothes of Badi Motia was made at the instance of the accused, and that this recovery was quite sufficient, in the eye of law, to warrant the conviction of the accused-appellant Radha Kishan. It was also contended that as Badi Motia had scolded Chooti Motia and Radha Kishan for having relations and also for having given her a pair of "chappal" as gift by Radha Kishan, he must have tried to remove Badi Motia from his way. 5. So far as the appeal of the State against Sahadeo is concerned, it was contended that the ornaments were recovered at the instance of Sahadeo & on the information give by him under Section 27 of the Indian Evidence Act. It was also contended that when ornaments were recovered at his instance, he could at least by convicted under Section 411 Indian Penal Code if his conviction under Section 404/34 Indian Penal Code could not be sustained. It was also contended that when ornaments were recovered at his instance, he could at least by convicted under Section 411 Indian Penal Code if his conviction under Section 404/34 Indian Penal Code could not be sustained. it was also contended that the recovery of the ornaments can legitimately connect Sahdeo with the murder of Badi Motia, and the learned Additional Sessions Judge has erred in law in acquitting Sahdeo of the offence under Section 392 Indian Penal Code. 6. On behalf of the respondent Sahdeo, it was contended that there is no direct evidence against him; even there is no circumstantial evidence connecting him with the commission of the offence of murder of Badi Motia. it was further contended that only the recovery of the ornaments at the instance of Sahdeo cannot, in the eye of law, hold him directly responsible for the murder of Badi Motia. It was also contended that SWahdeo cannot be convicted under Section 411 Indian Penal Code when no charge was framed against him and that he has not stood trial of that charge. It was also contended that the evidence on record does not warrant conviction under Section 304/34 Indian Penal Code. 7. The respective contentions of the learned counsel for the parties have been heard, and the record of the case carefully perused. We have carefully gone through the3 judgement of the learned Additional Sessions Judge, and we are constrained to remark that the learned Additional Sessions Judge has not evaluated the evidence of the witness. As a matter of fact he has very cursorily referred to the evidence of some of the3 witnesses at some places in his judgement. In view of these circumstances, we are left with on option, but to evaluate the evidence at the appellant stage. 8. PW/1 Jitendra Kumar was employed as Laboratory Assistant in Negadiya. Radha Kishan was working as a Chowkidar under him. At time of the incident he had been promoted as a helper. PW/1 Jitendra Kumar has stated that Sahdeo was also employed in his deptt., and used to come to meet Radha Kishan, and often he had seen Radha Kishan and Sahdeo together. On 2nd and 3rd January, 1971. Radha Kishan was on leave. From 6th January, 1971 to 11th January, 1971, he was reported to have gone to Bhilwara and had returned on 11th January, 1971. On 2nd and 3rd January, 1971. Radha Kishan was on leave. From 6th January, 1971 to 11th January, 1971, he was reported to have gone to Bhilwara and had returned on 11th January, 1971. He further stated that Radha Kishan was awe fully afraid of being arrested by the police. When enquired, Radha Kishan told this witness that he was afraid as the dead body of Badi Motia has been recovered, and that his brother has been arrested by the police. 9. PW/2 Sukhram Singh only a formal witness, and has not stated anything regarding the commission of this offence. 10. Raghunath is the younger brother of Jagnnath. It was he who has lodged the report with the police on 13th January,1971. Mst. Kalyani, the wife of Radhunath is the real sister of Badi Motia. He has stated that on 3.1.1971, which was Sunday, Jagannath had gone to Badi Motia's house with a special dish of meal and after serving meals Jagannath came back to the house of Chhoti Motia. The house of Chhoti Motia was about a furlong away from the place where Badi Motia was residing. Jagannath used to untie his bullocks in the "bara" attached to the house of Badi Motia. In the morning of 4.1.971 when Jagannath went to the house of Badi Motial he found her missing. The dead body of Badi Motia was discovered on 12.1.1971 by Gopal and Prema. Badi Motia was aged 32 years, while Jagnnath was aged 55 years. Jagnnath had lost his speech and had a poor health, and could walk for a little distance only. As no child was born out of the union of Jagannath and Badi Motia, Jagannath contracted "nata" with Chhoti Motia. Raghu Nath had a son aged 5 or 6 years, who was being kept by Badi Motia. He had slept with Badi Motia on the night of 3rd January, 1971. When Jagannath contracted "nata" with Chhoti Motia she was aged 25 years. Radhu Nath had stated that he had was kept in the police station for three days. Jagannath, Kalyani, Chhoti Motia and Bholu were also kept in the police station for three days. 11. PW.4 Ram Sahay is also a formal witness only. PW.6 Chhotu is the person in whose presence Ghaghara Loongara and Chaddar were recovered at the instance of Radha Kishan. Jagannath, Kalyani, Chhoti Motia and Bholu were also kept in the police station for three days. 11. PW.4 Ram Sahay is also a formal witness only. PW.6 Chhotu is the person in whose presence Ghaghara Loongara and Chaddar were recovered at the instance of Radha Kishan. PW.6 Ladu Lal is the person in whose presence Radha Kishan gave the information under section 27 of the Indian Evidence Act. Radha Kishan had told in his presence that he is taking the SHO to the village Negadiya. he has further stated that Radha Kishan said that Ghaghara. Loongara and Chaddar of Badi Motia were concealed in a pit about 2' deep. PW.7 Banshi Lal is the person in whose presence the accused Sahdeo gave information regarding the recovery of ornaments to the investigating officer on 8.2.1971. PW.8 Madan Lal, PW.9 Nand Kishore and PW.10 Ram Singh are again formal witnesses only. PW.11 Moti is the brother-in-law of Jagannath. At the instance of Jagan Nath, he had advanced a loan of Rs. 900/- to Mahadeo. Mahadeo and Bholu had arranged "nata" of Chhoti Motia with Jagan Nath. Chhoti Motia was the cousin sister of Mahadeo. 12. PW.12 Prem Chand, and PW.13 Ram Nath are only formal witnesses. 13. PW.14 Mst. Motia stated that she had come in "nata" with Jagan Nath about five years back, that she was living in a separate house, and that the house where Badi Motia was residing was about a furlong away. Before coming in "nata" with Jagannath she had gone in "nata" in village Basani From Negadiya she had gone to Basani along with Radha Kishan and on the way relations developed between her and Radha Kishan and since then she was carrying on with Radha Kishan. One day Radha Kishan came to her field of "bajara", but was seen by Jagan Nath. Jagan Nath raised hue and cry, as a result of which village people collected there. Badi Motia then scolded Radha Kishan and the witness. Mahadeo is the elder brother of Radha Kishan, and he has illegal relations with Badi Motia. The relations with Radhakishan continued even after she had come in "nata" with Jagan Nath. Jagan Nath was awe fully angry with Chhoti Motia for carrying on this relation, but the witness continued to have these relations. Jagan Nath was also unhappy with the relations which were going on between Badi Motia and Mahadeo. The relations with Radhakishan continued even after she had come in "nata" with Jagan Nath. Jagan Nath was awe fully angry with Chhoti Motia for carrying on this relation, but the witness continued to have these relations. Jagan Nath was also unhappy with the relations which were going on between Badi Motia and Mahadeo. Despite all persuations, Badi Motia continued her illegal relations with Mahadeo. Badi Motia had also advanced a sum of Rs. 150/- to one Moti Chamar. Badi Motia wanted the help of Radha Kishan in getting this sum of Rs. 150/- recovered from Moti Chamar. After the recovery of the dead body of Badi Motia, Radhaq Kishan met this witness after 5 or 7 days near a river where he stated that he had murdered Badi Motia, and that she would not disclose this to any body otherwise, she would also face dire consequences. She had informed the SHO about what Radha Kishan had told her hear the river. The otto had called her in the "thana" twice or thrice, and he had also come to make inquiries at her residence twice or thrice Radhu Nath and Jagan Nath were also called at the police station practically every day, but they were allowed to come back in the evening. 14. PW/15 Sardar Sherbahadur is a witness in whose presence the clothes of Badi Motia were recovered. PW/16 Shri Kishan is also a witness regarding the recovery of clothes. PW/17 Durga Lal and PW/18 Amba Shanker are only formal witnesses. PW/19 Jaswant Kumar and PW/20 Chawar Singh and PW/22 Sohan also did not depose regarding the commission of the offence. PW/28 in his throat and had lost speech, and thereafter he was advised to live with Chhoti Motia; but even thereafter Jagannath continued to visit Badi Motia. Radha Kishan visited the fields where "bajara" was growing & was caught by Jagannath. Badi Motia, therefore, scolded Radha Kishan and Chhoti Motia for this behaviour. Badi Motia used to lend money. After 8 or 10 days after the recovery of the dead body of Badi Motia, Radhaq Kishan came to her house and told her that he had murdered Badi Motia by strangulation. Madadeo and Badi Motia had illicit connections as Jagannath was old and used to remain ill. He did not object to the visit of Mahadeo. After 8 or 10 days after the recovery of the dead body of Badi Motia, Radhaq Kishan came to her house and told her that he had murdered Badi Motia by strangulation. Madadeo and Badi Motia had illicit connections as Jagannath was old and used to remain ill. He did not object to the visit of Mahadeo. PW/29 Jagannath has stated that she had arranged a loan of Rs.900/- from his brother in law to Mahadeo. Mahadeo had promised to return the money in two months. But as he failed to do so, there were strained relations between Mahadeo and Badi Motia. He has further stated that Radha Kishan had come to meet Chhoti Motia in the field with a view to have sexual intercourse; but he was caught. Radha Kishan had also presented a pair of Chappal to Chhoti Motia. Radha Kishan used to visit Chhoti Motia in the presence of the witnesses at her house. Badi Motia used to be awe-fully angry with this behaviour of Chhoti Motia. On 3.1.1971 Badi Motia had told him that Radha Kishan has said that Moti Chamar would be coming that evening and that he would arrange for the repayment of Rs.150/- which she had advanced to Moti Chamar. The witness has further stated that Mahadeo had developed illicit relations with Badi Motia & despite his best efforts he could not prevent the continuance of these relations as he used to keep ill, he started tolerating it. 15. PW/39 Loknath was the SHO, Police Station, Deowadi. A report was lodged before him on 13.1.971 by Raghunath. He has further stated that at the instance and on the information supplied by Radha Kishan, the clothes of Badi Motia were recovered. Similarly, at the instance and the information supplied by Sahdeo the ornaments were recovered. 16. The statements of both the accused Radhakishan and Sahdeo were recorded under section 342 Criminal Procedure Code. Both the accused pleaded not guilty and claimed to be tried. The accused did not lead any evidence in defence. 17. It appears that post mortem was conducted on the dead body of Badi Motia on 14/1/1971 by the Medical Officer, Incharge Government Hospital, Deoli District Tonk. Neither the Medical Officer has been examined before the Additional Sessions Judge, nor the post mortem report has been brought on record of the Additional Sessions Judge under section 288 Criminal Procedure Code. 17. It appears that post mortem was conducted on the dead body of Badi Motia on 14/1/1971 by the Medical Officer, Incharge Government Hospital, Deoli District Tonk. Neither the Medical Officer has been examined before the Additional Sessions Judge, nor the post mortem report has been brought on record of the Additional Sessions Judge under section 288 Criminal Procedure Code. It is difficult to imagine why such a serious lapse has taken place on behalf of the prosecution. To be fair to the accused persons also, the prosecuting agency should have brought true and full facts before the Court. The proceedings before the learned Additional Sessions Judge also indicate that, though, the Medical Officer was present on some date of hearing yet for the reasons not known from the proceedings his evidence was not recorded. 18. From the evidence on record, it has been established that Jagannath was an old, infirm and ailing person of 55 years. Initially, he was married to Badi Motia, who was younger to him in age by about 23 years. Despite 20 years of married life, no child was born out of the union of Badi Motia and Jagannath. Mahadeo & Bholu arranged the "nata" of Chhoti Motia with Jagannath. While Jagannath was 50 years, Chhoti Motia was about 25 years in age. Chhoti Motia and Badi Motia used to live to separate houses which were at a distance of one furlong. Chhoti Motia was married to Chatara of Khajuriya. Soon after Chatara died she went to 'nata' to Narayan of village Basani. Narayan kept her three or four years, and then abandoned her. During the days she was in 'nata' with Narayan she developed illegal connection with Radha Kishan, and continued them. Before coming in 'nata' to Jagannath, she went in 'nata' to other place also. It, thus, appears that Mst. Chhoti Motia was leading a fast life. Out of the union of Jagannath and Chhoti Motia a daughter was born; Radhakishan accused used to visit Chhoti Motia, but his visits were resented, to by Jagannath and Badi Motia. As Jagannath was very old and had lost his speech and could hardly walk, he failed to prevent Radhakishan from visiting Chhoti Motia at his house or in the fields. As Jagannath was very old and had lost his speech and could hardly walk, he failed to prevent Radhakishan from visiting Chhoti Motia at his house or in the fields. Badi Motia was, however, strongly annoyed with Chhoti Motia and Radhakishan for continuing these illegal connections, and also for Radhakishan having offered a pair of "chappals". 19. It is also borne out from the record that Badi Motia herself was carrying on illegal connections with Madadeo, the elder brother of Radhakishan, Jagannath has stated in clear terms that despite his best persuation Badi Motia did not cease her relations with Madadeo and continued the same. He has further stated that because of his weak health and old age he could not stop these illegal relations. 20. Jagannath visited Badi Motia on 3rd January,1971, when he took with him a special dish of meat. Thereafter Jagannath did not meet Badi Motia and could only discover her dead body on 12/1/1971 on the information given by the shepherd boys. There is absolutely no evidence on record to show in what manner Badi Motia left the house, or was taken out of the house, and where and how she was murdered. The extra-judicial confession made by Radhakishan before Chhoti Motia and before Mst. Kalyani, does not inspire confidence as it does not stand to reason as to why Radhakishan would go out of his way to make confession before Mst. Kalyani, who was the real sister of the deceased Badi Motia. It is also not appearing to common sense that after the recovery of the dead body of Badi Motia, Radhakishan would tell to Chhoti Motia near the river that he had murdered Badi Motia. The only circumstances, which might be incriminating, is that it was at his instance that the clothes of Badi Motia were recovered by the police from a pit. It was contended on behalf of the accused-appellant that the information given by Radhakishan to the SHO was not in confirmity with the requirement of section 27 of the Indian Evidence Act. It was also contended that the statement of PW/6 Ladulal clearly shows that whatever Radhakishan had stated to the SHO earlier was only repeated in his presence. It was contended on behalf of the accused-appellant that the information given by Radhakishan to the SHO was not in confirmity with the requirement of section 27 of the Indian Evidence Act. It was also contended that the statement of PW/6 Ladulal clearly shows that whatever Radhakishan had stated to the SHO earlier was only repeated in his presence. Radhakishan has been summoned to the police station a number of times from 13/1/1971 but it was only on 4/2/1971 when he arrested at 11 a.m. that he disclosed this information at 11.30 a.m. In these circumstances, it was contended that serious doubt is caused about the genuineness of this information under section 27 of the Indian Evidence Act. The learned Additional Sessions Judge has adopted two different yard-sticks in dealing with the cases of Radhakishan and Sahdeo. In the case of Sahdeo, it has been held that mere recovery of the ornaments at the instance and on the information furnished by him shall not lead to the conclusion that Sahdeo was in any way connected with the murder of Badi Motia. While in the case of Radhakishan, the recovery of the clothes at his instance has been held to be sufficient for convicting Radhakishan for the murdedr of Badi Motia. While in the case of Radhakishan, the recovery of the clothes at his instance has been held to be sufficient for convicting Radhakishan for the murder of Badi Motia. We have given our most anxious consideration to this aspect of the case, and are inclined to hold that in the circumstances of the case, the information under section 27 of the Indian Evidence Act does not fulfil the minimum essential requirements of section 27 of the Indian Evidence Act. Moreover, even if it is held that it was at his instance and on the information of the accused Radhakishan that these clothes were recovered, then too it is exceedingly difficult to hold that the mere recovery of the clothes would lead to the irresistible conclusion that it was Radhakishan alone who had murdered Badi Motia. The prosecution evidence has not succeeded in establishing beyond all manner of reasonable doubt that it was Radhakishan alone who was responsible for the murder of Badi Motia. Under these circumstances, the accused-appellant Radhakishan is entitled to the benefit of doubt. 21. The prosecution evidence has not succeeded in establishing beyond all manner of reasonable doubt that it was Radhakishan alone who was responsible for the murder of Badi Motia. Under these circumstances, the accused-appellant Radhakishan is entitled to the benefit of doubt. 21. As regards the appeal filed by the State against the acquittal of Sahdeo, it would suffice to say that no incriminating circumstances at all has been brought on record by the prosecution. The only circumstance which has been brought on the record is the recovery of the ornaments at the instance and on the information of Sahdeo. The learned Additional Sessions Judge has held that the mere recovery of the ornaments at the instance of Sahdeo does not in any way connect him with the commission of the crime. The learned Public Prosecutor has strenuously argued that even if the charge under section 302 Indian Penal Code may not have been established against Sahdeo, but when the ornaments have been recovered at his instance he can be held guilty under section 411 Indian Penal Code. The learned Additional Sessions Judge framed charges against the accused Sahdeo under section 302, 201 and 404/34 Indian Penal Code only. Sahdeo did not stand trial for the offence under section 411 Indian Penal Code. An offence under section 411 Indian Penal Code cannot, in any way, be deemed to be a minor offence of the offences under section 302, 201 and 404 Indian Penal Code. Under these circumstances it would cause a great prejudice to the accused Sahdeo if he is convicted under section 411 Indian Penal Code. The state has come up in appeal against the order of acquittal, and there are no compelling circumstances which warrant re evaluation of the evidence. 22. For the reasons stated above, there is no force in the appeal filed by the State. 23. In the result, the appeal filed by the accused-appellant Radha Kishan is hereby all wed. He is acquitted of the charge under section 302 Indian Penal Code. His conviction and sentence are accordingly set aside. He is in custody and shall be released forthwith if not required in any other case. 24. The appeal filed by the State against Sahdeo is hereby dismissed. He is on bail. His bail bond shall stand cancelled. *******