JUDGMENT 1. The learned Additional Sessions Judge, Sikar has convicted the accused-appellant Chothmal under Section 302, IPC and has sentenced him to imprisonment for life. In view of this sentence, the learned Additional Sessions Judge has not considered it fit to inflict a sentence of fine. 2. The case of the prosecution is, that Jeewanram (deceased) and Tolaram were real brothers. Tolaram died about 21 years ago, leaving behind two sons, the accused-appellant Chothmal and Ghanshyam (PW 3). Both of them were brought up by deceased Jeewanram. their uncle. When both became major, the land belonging to Tolaram was divided equally in between the accused-appellant and Ghanshyam (PW3). Jetwanram (deceased) kept his land to himself and was cultivating it. It is alleged that the accused-appellant wanted Jeewanram (deceased) to partition his land also in between him and Ghanshyam (PW 3), to which the deceased was not agreeing. On October 30, 1973, Ghanshyam (PW 3) had come to Jaipur in connection with the purchase of a tractor. In the night intervening 30th and 31st October, 1973, Jeewanram (deceased) was sleeping in his fields. Somebody committed his murder while he was sleeping The occurrence is alleged to have been witnessed by Maliram (PW 4) Taduram (PW 5) who were having their fields nearby. PW 1 Buddharam and Kundanmal (PW 11) and one Rameshwar Vaid (not examined) were playing Snake & Laddar game at the shop of Rameshwar Vaid at about 10, 10-30 p. m. on October 30, 1973. Hearing the alarm of same body that Jeewanram was being beaten, these persons along with PW 9 Sohanlal and PW 6 Banwarilal were attracted to that side. Buddhram (PW1) and Kundanmal (PW11) went on the roof of the shop, and from there went to the house of deceased Jeewaratn. There the accused-appellant was also present and he came out of his house armed with a Jeli. Shese witnesses along with "several others and the accused appellant then went to the fields of Jeewaram, where he was lying in a precarious condition with multiple injuries, which were bleeding profusely. He was lying just by the side of the cot on the ground. When they reached the place of occurrence, PW 4 Maliram and PW 3 Laduram were also present. The injured Jiwaram was taken on a cot towards his house and from there to the hospital where in the was he succumbed to his injuries. He was lying just by the side of the cot on the ground. When they reached the place of occurrence, PW 4 Maliram and PW 3 Laduram were also present. The injured Jiwaram was taken on a cot towards his house and from there to the hospital where in the was he succumbed to his injuries. A report of the incident (Ex. P. 6) was lodged by Ghanshyam (PW 3), who was informed at Jaipur by Rameshwar Lal about the murder of Jeewaram. He, therefore, gave the report (Ex. P. 6) at Ranoli Bus Stand to Hanumtnsingh (PW 13), Head Constable, P. S. Khatu. A case was registered and investigation was set in motion. Hanuman Singh reached the spot and prepared the inquest report of the dead body of Jiwaram. Thereafter, investigation of the case was taken over from Hanuman Singh by PW 19 Kamruddin Khan, S. H. O P. S. Khatu. 3. Post-mortem was conducted on the dead body of Jiwaram by Dr. Ramlal Sharma (PW 14) on November 1, 1973. It started at 10.30 p. m. and was finished at 1 p. m. Dr. Sharma, on examination of the dead body, found the following external injuries : 1. Lacerated wound on the right index finger posterior aspect, medial side, 2 cm. x 1/2 cm. x 1/2 cm. 2. Incised wound on right fore-arm just below elbow joint 2,1/2 cm. X 1/2 cm. X 1,1/2 cm. 3. Incised wound on left side of face near the outer angle of left eye-direction above downward, exposure of muscle. 4. Incised wound on the left side of head in between from to-temporal bone on left margin of frontal bone 6 cm. x 2 cm. broad from the middle and 1 cm. broad on both corners into bone deep, exposure of bone. There was cutting of frontal bone in direction of incised wound about 1/4 cm. deep, direction above-downward. 5. Bruise on the left upper lid (eye lid) 3 cm. x2 cm. 6. Irregular incised wound, complete division or right ear transversely division of outer margin, became curved on the right tragus 5 cm. x 2 cm. x division of ear. Exposure of cartilage, muscle and sub-cutaneous tissue. 7. Incised wound beneath the right ear above downward 31/2 cm. x 1 cm. x 1 cm. 8. Incised wound just below injury No. 7 in right temporal region 3 cm. x: 2 cm. x 2 cm. x division of ear. Exposure of cartilage, muscle and sub-cutaneous tissue. 7. Incised wound beneath the right ear above downward 31/2 cm. x 1 cm. x 1 cm. 8. Incised wound just below injury No. 7 in right temporal region 3 cm. x: 2 cm. x bone deep, 2 cm. below and 1 cm. above. 9. Stab wound just above injury No. 8,1/2 cm.x bone deep. 10. Stab wound just above injury No. 9, 1/2 cm. x 1/2 cm. x bone deep. 11. Incised wound just above injury No. 10 about 3 cm. 12. Incised wound on right side of neck about 6,1/2 cm. from outer margin, of right ear 3,1/2 cm. x 1 cm. longitudinally. 13. Incised wound on right side of neck-two incised wounds on the neck, one above downward and the other transversely-inner to outer side. 14. Incised wound on back, right side scapular region above-downward 3 cm, x2cm. x3 cm. deep. 15. Incised wound on the middle of occipital region 4, 1/2 x 1 cm.x bone deep,, direction left to right side. 16. Abrasion on back middle side vertebrae region 1 cm. x 1/2 cm. 17. Abrasion on back right scapular region near injury No. 14, 1/2 cm. X 1/2 cm. 4. On opening the body, the doctor found that there were multiple injuries on the scalp. There was fracture of the occipital bone and the frontal bone. All the injuries were anti-mortem in nature, and in the opinion of Dr. Sharma injury No. 4 with its internal effect was sufficient in the ordinary course of nature to cause death and collectively also. 5. The appellant was arrested vide arrest memo (Ex. P. 10) on November 2, 1973. At that time, he was wearing a Pyjama and Underwear, which appeared to be blood stained. They were seized and sealed by Kamruddin (PW 19) vide memo Ex. P. 11. The accused gave two information while in police custody u/s 27 of the evidence Act, and got recovered blood stained axe and a blood stained Chaddar. The Gandasi was recovered from the Bara of Balu, which had no shutters. Chaddar was also recovered from the house of the accused vide Ex. P. 13. The blood stained articles blood smeared earth, Pyjama and Under-wear and Gandasi of the accused were sent to Chemical Examiner. The Chemical Examiner vide his report Ex. The Gandasi was recovered from the Bara of Balu, which had no shutters. Chaddar was also recovered from the house of the accused vide Ex. P. 13. The blood stained articles blood smeared earth, Pyjama and Under-wear and Gandasi of the accused were sent to Chemical Examiner. The Chemical Examiner vide his report Ex. P. 22 found that the clothes of the deceased, Pyjama, under-wear, Gandasi and Chaddar recovered from the accused were blood stained. They were referred to the Serologist, who vide his report Ex. P. 23 found that cuttings from under-wear of the accused and Chaddar and scrapings from the Gandasi were stained with human blood. So far,as the Chaddar is concerned, it was stained with 'A' group blood. 6. After investigation a charge-sheet was filed and when a charge under section 302 I. P. C. was read over to him be did not plead guilty and claimed to be tried. The prosecution examined as many as 20 witnesses and thereafter, the accused was examined under section 342 Cr. P. C. (1898) to explain the evidence appearing against him in the statements of the prosecution witness. The accused stands on a bare plea that he was sleeping at his house during that night and was awakened by Budhamal and others. He accompanied them to the fields of Jiwan Ram and saw Jiwan Ram lying in a pool of blood with several injuries on his person. The plea of the accused further is that he had received half share from the property of his father Ghanshyam (P.W. 3) who is real brother of the recused wants to take that property by sending him to Jail as well as the entire of deceased Jiwan Ram. Ghanshyam (P. W. 3) has falsely implicated him. He has explained in his letter Ex. P. 8 and according to him, it was written by him to Ghanshyam in connection with the ornament of his (accused) wile and that the accused has committed a mistake by not agreeing to the suggestion of Ghanshyam. The accused examined two witness in defence, Govind Ram (D. V. I) and Ladu (D.V. 2). The Learned Additional Sessions Judge held that there was motive to murder deceased Jiwan Ram and that the two alleged eye witnesses of the occurrence, Mali Ram (P. W. 4) and Laduram (P.W.5) were reliable witnesses. 7. The accused examined two witness in defence, Govind Ram (D. V. I) and Ladu (D.V. 2). The Learned Additional Sessions Judge held that there was motive to murder deceased Jiwan Ram and that the two alleged eye witnesses of the occurrence, Mali Ram (P. W. 4) and Laduram (P.W.5) were reliable witnesses. 7. The submission of the learned Advocate for the appellant is that Mali Ram (P.W. 4) and Ladu Ram (P.W. 5) cannot be relied upon, because it is established from the record that they did not name the accused as the assailant of Jiwan Ram when the accused along with other villagers reached the spot immediately after the occurrence. He further submits that a look at the post mortem report (Ex. P. 15)and the statement of the doctor will make it clear that the deceased was done to death by at least three persons and it is not possible that only one person could have caused multiple injuries on the person of deceased Jiwan Ram by using different weapons. According to him, the medical evidence also goes to prove that the statements of eyewitnesses Mali Ram and Ladu Ram are not reliable. Dealing with the motive, which has been held proved by the learned trial court, it is submitted by the learned Advocate that the same is not made out against the accused, because the case of the prosecution itself is that the accused only wanted the land of Jiwan Ram to be divided between him and Ghanshyam (P.W. 3) his real brother. The accused never wanted that the entire land of Jiwan Ram should be given to him. So far as Ex. P. 8 is concerned, the submission of the learned Advocate is that it does not go to prove the guilt of the accused and is not an incriminating evidence which can be read in evidence to connect the accused with the murder of Jiwan Ram. The learned P. P. has supported the judgment of the trial court. 8. It is not disputed before us that Jiwan Ram died as a result of violence. A look at post-mortem report, (Ex. P. 15) and the nature and number of the injuries goes to show that Jiwan Ram was done to death and his death was not natural. Dr. 8. It is not disputed before us that Jiwan Ram died as a result of violence. A look at post-mortem report, (Ex. P. 15) and the nature and number of the injuries goes to show that Jiwan Ram was done to death and his death was not natural. Dr. Ram Lal Sharma (PW 14) also proof that the deceased died as a result of injuries and injury No. 4 as well as the other injuries collective were sufficient in the ordinary course of nature to death. 9. We have now to see as to whether the evidence of Mali Ram (PW 4) and Ladu Ram (PW5) is such which can be relied upon. Besides these two witnessed, there are no alleged eye-witnesses of the occurrence. Mali Ram (PW 4) has stated that he was sleeping on his fields which are adjoining the fields of Jiwan Ram on October 30, 1973. At about 10 or 10.30 p. m. he saw that the accused Chothmal came there running. Jiwan Ram was sleeping at a distance of 30 paces from him. He raised an alarm and the accused gave an axe blow to Jiwan Ram. Hearing the cries of Jiwan Ram he rushed to that side and when he was at a distance of 10 paces, the accused threatened him. In the mean-time Ladu Ram also came running from his fields. Shakuri Balai also arrived thereafter. He told Shakuri Balai to go to the house of Jiwan Ram and inform about the incident The statement of Mali Ram (P.W. 4) in our opinion, can not be relied upon for more than one reason. It is admitted by Mali Ram (P. W. 4), and by the other witness that along with other villagers, Budha Ram (P. W. 1), Kundan Mai (P.W. 11), Sohan Lal (P.W. 9), Banwari Lal (P.W. 16) and the accused appellant had arrived on the spot When all of them arrived there the deceased was alive, but neither the deceased not anybody else including Mali Ram (P. W. 4) and Ladu Ram (P. W. 5) named the accused as the assailant of deceased Jiwan Ram. If Jiwan Ram was conscious as is stated by the witnesses, and if the accused was his assailant, then immediately after seeing the accused the deceased Jiwan Ram, who was alive, would have told others that the accused was his assailant. If Jiwan Ram was conscious as is stated by the witnesses, and if the accused was his assailant, then immediately after seeing the accused the deceased Jiwan Ram, who was alive, would have told others that the accused was his assailant. It is also stated by Mali Ram (P. W. 4) that when the accused and others were taking Jiwan Ram on a cot, he was raising an alarm and was alive, but still he did not name the accused as his assailant throughout the way. Merely because the accused might have given out in the way when Jiwan Ram had died that his dead body should be taken to the cremation ground, it cannot be said that the accused admitted his guilt. In cross-examination, Mali Ram (P. W. 4) admits that he did not actually see the accused going towards the place where Jiwan Ram was sleeping and only saw him when he was inflicting blows to Jiwan Ram He has made improvement in his statement in the court on his previous police statement when he deposed that he saw in the torch light in as much as there is no mention of the torch light in his statement (Ex. D.2). There is also no mention of the torch light in his statement Ex. D.3 recorded under S. 164, Cr. P. C. It has also been stated by Maliram (P. W. 4) that the other witness Laduram also arrived immediately on the spot on his alarm. Laduram does not state that he saw the accused inflicting blows on Jiwanram and only states that he saw the accused running away. A look at the injuries (17) of Jiwanram will show that sometime must have been taken in inflicting them. He states that about 60-70 persons had assembled at the well of Nanuram when Jiwanram was being taken and he disclosed the name of Chouthmalas the assailant. A perusal of the statements of Buddharam (P.W.1), Kundanmal (PWU) Sohanlal (PW 9) and Banwarilal (PW 16) will show that they do not state that the name of the appellant was disclosed as the assailant of the deceased by Laduram or Maliram. Chouthmal accused accompanied the injured throughout till he died and if" the deceased or the witnesses would have disclosed his name the villagers would have apprehended him immediately. Chouthmal accused accompanied the injured throughout till he died and if" the deceased or the witnesses would have disclosed his name the villagers would have apprehended him immediately. PW 4 Maliram further states that while the inquest report was being prepared, he disclosed the name of Chouthmal as the assailant of Jiwan ram, but there is no such mention in the inquest report (Ex. P. 2). In the Court, the deposed that he saw the accused inflicting blows with an axe to deceased Jiwan ram but when he was confronted with his police statement (Ex. D. 2), where in this fact is not mentioned, he could not explain the conflict. In Ex. P. 9 - site plan, which was prepared at his instance and is signed by him in portion C-D he stated that he saw the accused giving blows with a dagger. When he was confronted with this portion, he could not explain the conflict. 10. The other eye witness is Laduram (PW2). His statement also suffers from the same infirmities. He has stated that on hearing the alarm of Maliram (PW4) that some body should run as Jiwanram was being beaten, he ran towards that side with a torch. He saw that Jiwanram was lying on the ground near the cot and Chouthmal was running away from that side. Many persons thereafter assembled on hearing the alarm and Jiwan ram was taken to the village in an injured condition. He does not say that Jiwan ram disclosed the name of the accused who too had arrived on the spot as his assailant. According to him, he saw the back of Chouthmal while running away from a distance of 30 steps. In his statement (Ex.D.4) (page 226 of the Paper Book) with which he was confronted, he did not name the accused as the person, who was running away, and was seen by him, and stated that he saw a person running away, but he could not identify him. He could not explain this material omission of the name of the accused under S. 164, Cr.P.C. Therefore, his statement in the Court that he identified the accused from his back cannot be relied upon. He could not explain this material omission of the name of the accused under S. 164, Cr.P.C. Therefore, his statement in the Court that he identified the accused from his back cannot be relied upon. He too like Maliram (PW4) did not disclose to the villagers, who had arrived at the spot, that the accused was the assailant of Jiwanram or that he had identified him, or that he had seen him running away from the side where the deceased was lying injured. 11. It has been stated both by Maliram (PW4) and Laduram (PW5) that Shakur had arrived immediately after hearing the alarm from the fields and he was sent to the house of Jiwanram to inform him about the incident. Shakur has been examined as PW 17. He states that when he reached the spot, he saw that Jiwanram was lying injured in a pool of blood. Me has clearly stated that none told him that they had seen the accused inflicting blows to the deceased. Therefore, the fact that the name of the accused was not disclosed by PW 4 Maliram and PW5 Laduram. immediately after the occurrence to Shakur (PW17), the first person to reach the spot on the alarm also goes to show that their statements cannot be relied upon and they had not seen the accused inflicting blows to Jiwanram 12. The other set of evidence is of PW1-Budharam, PW11 Kundanmal, PW9 Sohanlal and P.W.16-Banwarilal. We have already observed while dealing with the statement of witnesses Maliram and Laduram that when these witnesses reached the spot, the name of the accused was not disclosed by the eye - witnesses. All of them have stated that first they went to the house of Jiwanram and from there returned with other persons including the accused, who had come out after they reached. They do not state that when the accused reached the spot, the eye witnesses or Jiwanram, who was injured and was conscious, disclosed his name as the assailant of Jiwanram. It is the case of the prosecution that all these witnesses accompanied the injured Jiwanram upto his house, and till then Jiwanram was conscious and he did not disclose the name of the accused as his assailant. PW 10 Nanur..m has, no doubt, stated that when the injured was brought to his well, Jiwanram named the accused as his assailant. It is the case of the prosecution that all these witnesses accompanied the injured Jiwanram upto his house, and till then Jiwanram was conscious and he did not disclose the name of the accused as his assailant. PW 10 Nanur..m has, no doubt, stated that when the injured was brought to his well, Jiwanram named the accused as his assailant. But, none of the eye witnesses has supported him. He too does not state that the deceased said that the accused had caused injuries to him and has only stated that the accused said at he (Jiwanram) was suffering and, therefore, he should be thrown into the well. Firstly, his statement to that effect does not connect the accused with the crime and secondly in the presence of other witnesses, who do not support him, it becomes doubtful if the deceased uttered these words. PW 12 Bhagwana has stated that when the injured Jiwanram was taken to his house, Banwarilal, Kundanmal, Buddha and about 60-70 persons were present and then they enquired of Jiwanram as to who had beaten him and Jiwanram named the accused as his assailant. But, Banwari (PW16), Kundanmal (PW1) and Buddha (PW1) do not support him. Therefore, only on his statement, it cannot be said that the deceased made any dying declaration to him naming the accused-appellant as his assailant. 13. A Gandari blood stained, Chaddar, a Pyjama and an Under-wear of the accused were recovered. Gandasi was recovered from a Bara, which was accessible to all. PW7 Bhagirath and PWS Hardeva have stated that the Gandasi was recovered, but they do not state that it was sealed at the spot. Therefore, firstly, the recovery of an exe, which was later on found bloodstained by the Chemical Examiner, and further found stained with human blood by the serologist, appears to be suspicious, and secondly even if it is relied upon, the only evidence of recovery of a blood stained weapon is not sufficient to connect the accused with the crime. So far as the Chaddar and the underwear of the accused, which were found to be blood stained, are concerned, it may be observed that even as per the case of the prosecution, the accused was one of the four persons who were taking away deceased Jiwan ram on a cot to the village. So far as the Chaddar and the underwear of the accused, which were found to be blood stained, are concerned, it may be observed that even as per the case of the prosecution, the accused was one of the four persons who were taking away deceased Jiwan ram on a cot to the village. Jiwan ram had multiple injuries, which were bleeding profusely, and, therefore the evidence of the other of the accused being blood stained does not connect the accused with the crime. So far as the statement of Mahavir Singh (PW 15) is concerned, he has stated the accused had washed his clothes which appeared to be blood stained, and the accused washed them, it cannot be said that the conduct of the accused was abnormal. 14. So far as the post motem report of Jiwan ram is concerned, a look at it will show that there were 17 injuries, incised wounds, lacerated wounds, and stab wounds. The nature of injuries is such which goes to show that at least three weapons were used and possible more than one person participated in the crime. Therefore, also the evidence of the eye witnesses that the accused was alone and inflicted injuries on Jiwan ram is such, which cannot be relied upon. 15. The learned Additional Sessions Judge has also relied on Ex.P.8. We have gone thought it. It is a letter dated 8-11-73 of the accused to Ghanshyam (PW3). After going through it, we are unable to say that it contains the confession of the accused. The learned Additional Sessions Judge has observed that if the accused would not have been the murderer of Jiwan ram, he would have denied the fact of his complicity in the crime. His approach is not in accordance with law. We are, therefore, of the opinion that Ex.P. 6 does not prove the case of the prosecution, 16. So far as the motive is concerned, we are unable to hold that there was any motive to murder the deceased Jiwan ram, because all that is stated by the prosecution witnesses is that the accused wanted Jiwan ram to partition his land also in between him and Ghanshyam (PW3). It is not the case that the accused wanted the land exclusively for himself. It is not the case that the accused wanted the land exclusively for himself. There is material on record that after the death of Jiwan ram, the land of Jiwan ram has been mutated in the name of Ghanshyan (PW3), We are, therefore, unable to hold that there was any motive to commit the murder Jiwan ram. 17. We therefore, accept the appeal, set aside the judgment of the learned Additional Sessions Judge, Sikar convicting and sentencing the accused - appellant under S. 302. IPC, and acquit him of the charge levelled against him. He is on bail and need not surrender to his bail bonds, which shall stand discharged. *******