JUDGMENT 1. - Respondent Kundan Singh was tried for the offences under Sections 396, 365, 1208 and 171 I. P. C, along with one Bhagdawat Ram. By his judgment dated 30th November, 1970, the learned Assistant Sessions Judge, Pali, acquitted the respondent and co-accused Bhagdawat Ram, for the charges levelled against them. Being aggrieved by that judgment of acquittal, the State of Rajasthan has preferred this appeal against Kundan Singh. 2. Briefly stated, the facts of the case, which led to the trial of the respondent are, that there was a long standing enmity between the father of respondent Kundan Singh and P. W. 1 Anraj. Kundan Singh wrote two threatening letters to Anraj one of those letters dated 27-11-1968 has been produced in this case, and is marked Ex. P. 7. A demand of Rs. 7,000/- from Anraj had been made in that letter with a threatening that in case he would not comply with the direction he would meet with dire consequences. 3. On 18-3-1970, respondent Kundan Singh along with Bhagdawat Ram, co-accused and one Amar Singh (discharged by the learned Munsif Magistrate, Sojat) hired a taxi car No. R. J. Ty. 3001, for going to Marwar Junction. The driver of that car was Murlidhar. At about 7 p. m. the car along with these persons left Jodhpur and reached Bithuda, via Pali and Marwar Junction, after about two hours. The driver was asked to stop the car for a while at a place near one water-hut situated at the outskirts of the village Bithuda. There Kundan Singh, Amar Singh and Bhagdawat Ram took wine. Kundan Singh and Bhagdawat Ram changed their dresses, and put on military dresses with stars etc. of Lt. Col. All of them again boarded the car and directed the driver to proceed further. On reaching village Bithuda, the driver was asked to stop the car outside one lane. Respondent Kundan Singh along with Bhagdawat Ram got out of the car and instructed the driver to keep quiet and not to run away from that place. Amar Singh remained in the car. Kundan Singh and Bhagdawat Ram with knives in hands, entered the house of Anraj, and asked his wife, Mst. Virju, as to where Anraj was. She went inside the house and called Anraj. The respondent asked Anraj to hand over the relevant papers and the money to him. Amar Singh remained in the car. Kundan Singh and Bhagdawat Ram with knives in hands, entered the house of Anraj, and asked his wife, Mst. Virju, as to where Anraj was. She went inside the house and called Anraj. The respondent asked Anraj to hand over the relevant papers and the money to him. Anraj refused to do so. Kundan Singh threatened Anraj with a pistol shaped knife. Despite that Anraj refused to pay him the money and to hand over the papers, Kundan Singh took him in the pretext to take him to his officer. When they came out of the lane they did not find the car, where they had left it. When they covered a little distance, along with Anraj, a number of persons assembled there, and the two persons left Anraj there. With the help of certain villagers, they were able to trace out their car and left the village for Jodhpur. Driver Murlidhar suspected some foul affair, and therefore, on his way to Jodhpur, he asked P. W. 17 Mangal Singh at Rohat Bus-Stand to inform Hari Singh. Mangal Singh on reaching Jodhpur informed Daulat Singh and asked him to inform Hari Singh. On being informed, Hari Singh brought the matter to the notice of S. H. O. Udai Mandir. 4. The car along with the three persons reached Jodhdur. All of them, took dinner at Azad Hind Hotel, at Station Road, Jodhpur. On receiving the information from Hari Singh, Sub Inspector Hemraj of Police Station, Udai Mandir made an entry in the daily diary to this effect, and went with Hari Singh to Azad Hind Hotel. There, he saw Amar Singh standing near car No R. J Ty. 3001. When he reached there driver Murlidhar along with Kundan Singh and Bhagdawat Ram came out. Hemraj arrested Kundan Singh, Amar Singh and Bhagdawat Ram vide arrest memos Ex. P. 13. Ex. P. 14 and Ex. P. 15. He also recovered a bag. Ex. P. 2 containing bushshirt, cap, spects, one pistol typed knife, clothes and a rope, and one knife, Ex. P. 1. The accused and the articles seized, were sent with Mohan Singh A. S. I. to Kharchi Police Station. 5. After the accused persons had left village Bithuda, Bhisulal S/o Anraj went to Police Station, Kherchi, and lodged a report at 3.30 A. M. on 15-3-1970. P. 1. The accused and the articles seized, were sent with Mohan Singh A. S. I. to Kharchi Police Station. 5. After the accused persons had left village Bithuda, Bhisulal S/o Anraj went to Police Station, Kherchi, and lodged a report at 3.30 A. M. on 15-3-1970. Kapura Ram, incharge of the Police Station at that time, registered the case under Sections 365, 393, 170, 1208 and 342, I.P.C. and chalked the formal report Ex. P. 22 on the basis of written report Ex. P. 9 filed by Ghisulal. At about 6 A. M. S. H. O. Laxman Singh reached the police station and was told about the First Information Report by Kapura Ram. He interrogated Ghisulal and recorded his statement. The case being of serious nature, the S. H. O. telephonically informed P. W. 1 Beerbal Gupta, Dy. S. P. Sojat, and requested him to come for investigation. On 15-3-1970 at about 8.15 A.M. Laxman Singh, S. H. O. received information from Udai Mandir Police Station about the arrest of Kundan Singh, Bhagdawat Ram and Amar Singh. The Dy. S. P. reached the police station at 12-30 P. M. on 15-3-1970, and proceeded with the investigation. At about 9.30 in the night, the S. H. O. and the Dy. S. P. reached village Bithuda. and started investigation there. Site plan Ex. P. 8 was prepared. Threatening letter Ex. P. 7 was produced by Ghisulal, which was taken in possession vide memo Ex. P. 10. On 17-3-1970 respondent Kundan Singh was taken in the court of II Class Magistrate Sojat Shri J.K. Johri, who took his specimen writing. The letter Ex. P. 7 along with the specimen writing was sent for examination to Shri F.C. Puri, Assistant Director, Questioned Documents in the Forensic Science Laboratory at Jaipur. He examined the document and prepared the report Ex. P. 31. He opined that the disputed document Ex. P. 7 was in the handwriting of the same person who wrote the specimen Ex. P. 28, Ex. P. 30, and Ex. P. 18 and Ex. P. 19. After completion of investigation, charge-sheet against the respondent, and two others, namely, Bhagdawat Ram and Amar Singh was filed in the court of Munsif Magistrate, Sojat. P. 7 was in the handwriting of the same person who wrote the specimen Ex. P. 28, Ex. P. 30, and Ex. P. 18 and Ex. P. 19. After completion of investigation, charge-sheet against the respondent, and two others, namely, Bhagdawat Ram and Amar Singh was filed in the court of Munsif Magistrate, Sojat. The learned Magistrate after conducting the preliminary enquiry discharged Amar Singh and committed Kundan Singh and Bhagdawat Ram to stand their trial in the court of Sessions Judge, Pali, who transferred the case to the court of Assistant Sessions Judge, Pali for trial. 6. The learned Assistant Sessions Judge charge-sheeted Kundan Singh and Bhagdawat Ram for the aforesaid offences, and recorded their plan. Both of them denied the charges and claimed to be tried. In order to substantiate its case, prosecution examined 27 witnesses in all. In their statements they denied the allegations levelled against them and stated that on 14-3-1970. they were on duty till 8.30 P. M. and thereafter, went to see the picture. Three defence witnesses were examined to substantiate this contention. The learned Assistant Sessions Judge did not place reliance on the prosecution evidence, and therefore, acquitted both the accused. The State of Rajasthan being dissatisfied with the judgment of acquittal in favour of the respondent Kundan Singh, has come in appeal. 7. We heard Mr. N.S. Acharya, learned Public Prosecutor for the State and Mr. P. L. Chaudhry, learned counsel for the respondent. The learned Public Prosecutor strenuously contended that the learned Assistant Sessions Judge has erred in concluding that the respondent could not be identified by any one. According to him, there is the specific evidence of Anraj and Mst. Virju that Kundan Singh was identified by them by voice, and therefore, it is urged that there was no necessity for any identification parade for Kundan Singh. It has been next contended that the statement of Murlidhar, driver is cogent and convincing on the point that the respondent was one of the persons, who had hired the taxi, and it was he who had taken the taxi car to village Bithuda, and thereafter, it was he, who along with two more, was arrested by the police when they had come out of the hotel after taking dinner. It has been stressed by the learned Public Prosecutor that the statement of Murlidhar should be taken as a whole, and his deposition in the examination in chief that the persons who were in the car, were arrested outside the hotel, should be taken into consideration. 8. The learned counsel for the respondent controverting these arguments submitted that there is no certainty that the identification by voice is unmistaken in all circumstances. According to the learned counsel, there was no identification parade held so far as Kundan Singh is concerned and therefore, it cannot be said that he was amongst the three persons, who are said to have gone in the taxi and then to Anraj. It has also been argued by the learned counsel that the statement of Murlidhar taken as a whole clearly shows that he had identified the respondent in the court only because, he had seen him at the police station next day. The learned counsel thus tried to justify the finding of the innocence of the respondent. 9. We have carefully examined the record of the case. Prosecution has started its case with the allegation that the respondent had the motive to commit the crime. In this connection letter Ex. P. 7 has been produced. Prosecution has succeeded in proving that this letter was in the handwriting of the respondent. A threatening letter taken in itself, cannot be an evidence for the commission of this crime, unless, it is proved that it was the writer of the letter, who had gone to the house of the respondent on that night. Relevant it is to note that the letter Ex. P. 7 relates to the year 1968 and as the statement of Anraj shows he had ignored it. It may also be noted that during those two years, no action was taken against Anraj for the non compliance of the direction given in the letter. In these circumstances, this letter has been rightly not taken into consideration by the learned Assistant Sessions Judge as an evidence connecting the respondent for the commission of the crime. 10. So far as the direct evidence against the respondent is concerned, prosecution has examined Anraj, his wife, Mst. Virju and the three villagers, Ishwar Chand, P. W. 4, Ram Pratap P. W. 5 and Mishrilal P. W. 6. 10. So far as the direct evidence against the respondent is concerned, prosecution has examined Anraj, his wife, Mst. Virju and the three villagers, Ishwar Chand, P. W. 4, Ram Pratap P. W. 5 and Mishrilal P. W. 6. Ram Pratap, Mishrilal and Ishwar Chand, according to the prosecution, had assembled when Anraj was brought outside the house by the miscreants. Ishwar Chand is said to have accompanied them upto the car. These three witnesses have not supported the prosecution case, and have been declared hostile. Anraj and Mst. Virju have stated that they could not identify anybody by face, but could identify Kundan Singh by his voice. According to Anraj he had told Mishrilal, Ram Pratap and Ishwar Chand that out of the two persons, committing mischief with him, one was Kundan Singh, but the three witnesses have not supported his contention. The learned counsel for the respondent took us through the statement of this witness, and emphasised that he has given different statements in the trial court, committing court and before the police. It has been emphatically stressed by the learned counsel that Anraj being inimical with the father of the respondent, was capable of falsely implicating the respondent in a case. 11. The witness even did not deny the suggestion that he was giving false evidence against the accused and had else falsely implicated their father. With 1 regard to the evidence of Mst. Virju, it is to be noted that she has admitted , that the two brothers of respondent Kundan Singh used to visit her house and the voice of these two brothers was similar to that of Kundan Singh, and therefore, she could identify him. 12. In order to find out whether the version that Kundan Singh could be correctly identified by voice or not, is correct or not, the first version as appearing in the First Information Report, is to be seen. This fact of Kundan Singh being identified, of course, appears therein, but its correctness has been challenged from the defence side in view of the omission of this fact in the entry in the daily diary Ex. D. 8. Kapura Ram, who had made the entry in the daily diary, was cross-examined at length in this connection. He has admitted that Ex. D. 8. was written by him, and it bears his signatures. D. 8. Kapura Ram, who had made the entry in the daily diary, was cross-examined at length in this connection. He has admitted that Ex. D. 8. was written by him, and it bears his signatures. He has stated that the daily diary is written according to the police regulation No. 279, and it is necessary to copy the First Information Report in it. He further deposed that as he had to go in search of the car and accused, and so being in hurry, did not write the number of the car, and the names of the accused, in Ex. D. 8. despite their appearing in the First Information Report. Then he admitted that it was per mistake that he did not write the names of the accused and the number of car in Ex. D. 8. The learned Public Prosecutor has tried to explain this position by submitting that Kapura Ram might have thought it proper only to write the substance of the First Information Report in the "Rojnamcha". If some inmate in fact would not have been of much importance in the case but, where the names of the accused and the number of the car are said to have been written in the First Information Report, their omission in the 'Rojnamcha' gives great strength to the argument of the learnad counsel for the respondent that the initial version was that as appearing in Ex. P. 8. and the First Information Report Ex. P. 9, might have been planted subsequently. This being the position the identification parade of the respondent for these two witnesses, was required, which for the reasons best known to the prosecution, has not been got conducted. It may also be noted here that Anraj while participating in the identification parade for Bhagdawat Ram, had identified him as Kundan Singh. It may be inferred from this that he could not have been able to identify Kundan Singh even if a parade would have been arranged for him. 13. The direct evidence against the respondent being of this type, the learned Public Prosecutor has concentrated his arguments with reference to the statement of Murlidhar, the driver of the taxi. It may be inferred from this that he could not have been able to identify Kundan Singh even if a parade would have been arranged for him. 13. The direct evidence against the respondent being of this type, the learned Public Prosecutor has concentrated his arguments with reference to the statement of Murlidhar, the driver of the taxi. This witness has supported the prosecution case about the taxi being hired, two persons changing the dress near the water-hut, the taxi being stopped outside the lane with one person remaining behind and two going from there, he taking his taxi away from there, on being traced out by those two persons the taxi again being brought to Jodhpur, he along with three persons taking the dinner at Azad Hind Hotel, and then those persons being arrested by the police. Murlidhar has, thereafter, taken a turn, and stated that when he had gone for making the payment of the bill for the dinner, in his absence the police arrested those persons, who had travelled in his car. The learned Public Prosecutor has urged that Murlidhar has stated that the person who had travelled in his car, were arrested and Hemraj has deposed that the respondent and Bhagdawat Ram and Amar Singh were arrested by him outside the Azad Hind Hotel, the chain of the prosecution case, is complete, and therefore, it should not be doubted that the persons arrested outside the hotel, should be some other persons. When the whole case hinges on the testimony of Murlidhar, the whole statement, and not the deposition in the examination in chief, is to be looked into. According to Hemraj, Murlidhar was taken to the police station along with the arrested persons. If that would have been so, Murlidhar's statement that he had seen the respondent and others at the police station, and so he could identify them, would have lent support to the prosecution case. But, here the matter stands on a different footing as appearing in the statement of Murlidhar. He has stated that he was not examined by the police in the same night, rather was examined on the next day when he had gone to the police station. It has also been stated by him that his signatures on Ex. P. 4 were taken by the police on the next day when he had gone to the police station. It has also been stated by him that his signatures on Ex. P. 4 were taken by the police on the next day when he had gone to the police station. According to him, he had seen the accused on 15-3-1970 in the morning at Udai Mandir Police Station. He has stated that the persons had boarded the car when it was dark, and there was no light inside the car. On being suggested in the cross-examination that because he had seen the accused under custody in the police station, he thought that they might be the persons who were the passengers in his car on 14-3-1970, the witness replied in affirmative and stated that because he had seen on 15-3-1970, the accused at Police Station, Udai Mandir, he says that perhaps they were those persons, who were the passengers in his car on 14-3-1970. He has stated that in his presence, the accused had pinned up stars, but in the next breath he explained that by accused he means, the persons, who were travelling in his car. From the statement of this witness, it is evident that what the witness had intended to say is that the arrest was not made actually in his presence, rather in his absence, when he had gone to make the payment of the bill. It is also clear from his statement that he could identify the passengers of the car and only because he had seen the respondent and the others arrested in the police station and so he could form an idea that perhaps they were the persons who had travelled in his car. A person being with the miscreants for such a long time, and taking dinner with them, could easily identify them, but this, witness Murlidhar has given such a strange version, and despite that prosecution has not cared to seek permission of the court for cross-examination of this witness. This being the position, on reading the statement of the witness as a whole, his version that prior to his seeing the respondent and the other at the police station, he could not identify the passengers of the car, cannot be ignored. Out of the two Motbirs of the arrest memo, Daulat Singh has been declared hostile by the prosecution case. Out of the two Motbirs of the arrest memo, Daulat Singh has been declared hostile by the prosecution case. He has not supported the version that the arrest memos were prepared at the site and signatures of the motbirs were taken at that time. According to this witness, his signatures on these memos were taken in the morning, and he was unable to say whether the accused were arrested in the night or not. He has denied the preparation of any memo in his presence. Another witness to the arrest memos, is Mool Singh. He has admitted that three persons were arrested in his presence at 12.00 in the night, in front of Azad Hind Hotel, but he has not stated that the persons arrested were there in or near the car. Thus, it is clear that there is no cogent convincing evidence to prove that the persons arrested in the night by Hemraj, were the same who were travelled in the car, driven by Murlidhar. 14. The defence taken by the respondent as stated above is that he was on duty upto 8.30 P.M. on 14-3-1970 and then went to see the picture and while returning, he was arrested. To substantiate this contention, D.W. 1 Devi Singh, Subedar of the Unit, which, the respondent and the co-accused Bhagdawat Ram were working was examined. He has proved the presence of these two persons on 14.3.1970, upto 7.30 P. M. by entries in the Attendance Register. The absence of the respondent and the co-accused in the variety programmes at 8.30 P. M. on that day and on the morning parade, was also stated by the witness. The learned Assistant Sessions Judge has discussed this statement in detail, and arrived at a conclusion that a person leaving Jodhpur at 7.30 could not have roached Bithuda within two hours, and similarly, could not have returned to Jodhpur by midnight. He has, therefore, believed the defence version and in our opinion, rightly so, 15. From the above discussion, we are of the opinion that prosecution could not prove, by cogent, convincing and unimpeachable evidence, the guilt of the accused. We therefore, find no justification in interfering in the findings of the learned Assistant Sessions Judge, based on sound reasonings. 16. Consequently, the appeal filed by the State, being without force, stands dismissed. The bail bonds of the respondent are discharged.Appeal Dismissed. *******