JUDGMENT 1. 1. These two appeals are directed against the judgment of the learned Additional Sessions Judge No. 1, Kota, convicting the accused appellant and sentencing them as under: Surendra Singh Under Section 302 read with Section 149 IPC Gyan s/o Tikam Chand Imprisonment for life and Under Section 148 IPC, Gijju , Bhooriya Chander 2 years RI. Girraj Ghoda Under Section 307 IPC 4 years R.I. 2. According to the prosecution case, the occurrence took place at about 10.30 p.m. on 18-12-1978 when accused appellants and one co-accused Khairati came in the Hospital and committed murder of one Raju who was admitted in the hospital due to some injuries. These accused persons also injured Saboo (PW 4) who was attendant of his friend Raju. The police received information and reached at the Hospital and recorded the statement (Ex. P. 2) of Saboo (PW 4) on the basis of which a regular FIR (Ex.P 17) was registered at the Police Station Nayapura, Kota. The police registered a case Under Section 302, 307, 147, 148 and 149 IPC. 3. The police after usual investigation submitted a challan in the Court of Judicial Magistrate No. 1, Kota who committed the case to the Sessions and the learned Additional Session Judge No. 1, Kota, after trial convicted and sentenced the accused appellants as aforesaid and acquitted the accused Khairati. It is against this judgment that these two appeals have been filed. Since they arise out of the same incident and the same judgment, both are being disposed by this common order. 4. Learned counsel for the appellants have vehemently argued that the prosecution has falsely implicated the accused appellants and that all the witnesses who had deposed against the appellants, are interested witnesses and inimical towards the appellants, hence, their evidence cannot be relied upon. They have further submitted that the prosecution has failed to examine any independent witnesses who were admittedly present at the spot and were even named in the calender of witnesses produced along with the challan. The learned Additional Sessions Judge has acquitted the co-accused Khairati and the State of Rajasthan has not filed any appeal. While acquitting the co-accused Khairati, learned Additional Sessions Judge did not place any reliance on the same set of evidence who have implicated the accused appellants also along with Kharati. The learned Additional Sessions Judge has acquitted the co-accused Khairati and the State of Rajasthan has not filed any appeal. While acquitting the co-accused Khairati, learned Additional Sessions Judge did not place any reliance on the same set of evidence who have implicated the accused appellants also along with Kharati. They have further submitted that the articles alleged to have been recovered by the prosecution at the instance of the accused appellants did not show any blood marks and did not connect the accused appellant with the crime. 5. On the other hand, learned Counsel for the State of Rajasthan has supported the judgment of the trial Court. 6. We have carefully gone through the judgment of the Additional Sessions Judge No. 1, Kota as also the record of the case. 7. PW 1 Surendra Singh is the Compounder was who on duly in Surgical Ward 'A' in the hospital on 18th December, 1978 along with Amar Chand (PW 15). He has stated that some people had come to the Ward at about 10.45 p.m. and asked him as to where Raju was. He told that Raju was on bed No. 40. Those people went towards the bed of Raju. They were 3 or 6 in number. He further stated that he did not know those persons by name or by face. He heard the cry from the side of his bed (BACHAO BACHAO). He did not see the actual incident as there was darkness and the lights had been put off. He went to telephone the doctor on duty but could not contact the doctor on phone, and the accused persons ran away and passed through in front of him. One of the accused persons was a Sikh gentleman. He went to the duty Doctor Shri K. Lal (PW 5) who sits in the Out-door and narrated him the whole incident. Doctor came to the Ward and lights were put on and it was found that there was no one on Bed No. 40 and Raju who was supposed to be on Bed No. 40, was lying in between the Bed Nos. 38 and 39 and and was bleeding profusely. He was murmuring but they could not follow. The attendant of Raju also received some injuries. Raju was taken on a stretcher into the lobby where the staff used to sit. 38 and 39 and and was bleeding profusely. He was murmuring but they could not follow. The attendant of Raju also received some injuries. Raju was taken on a stretcher into the lobby where the staff used to sit. Raju was also given some injections but he succumed to this injuries at about 10.55 p.m. Raju was admitted in the evening of 17th December, 1978. The doctor informed the Police. The Police prepared the site plan (Ex. P 1) signed by him. In cross examination, he admitted that he knew accused Chander who was treated by him in the Ward on earlier occasion and accused Chander was not amongst those persons. 8. PW 2 Baijraj Singh who was named as an eye witness in the FIR has stated that he and Prem Singh had gone to the hospital on 18-12-1978 at about 8 or 9 p.m. to meet deceased Raju and Asha. They went first to meet Asha who was admitted in Surgical Ward 'B' and thereafter, they went to meet Raju who was admitted in Surgical Ward 'A' and saw Sabu (PW 4) who was the attendant of Raju. Since Raju was sleeping they enquired about Raju from Saboo and returned back. As they reached the gate of the hospital, they saw 2 or 3 Auto-rickshaw arrived there, persons armed with weapons got down and they saw the accused Surendra Singh, Chander, Gyan, Girraj, Bhooriya, Khairati and Gajju and 2 or 3 other persons whose names he did not know. Surendra Singh and Girraj Ghoda were armed with sword and other accused persons had open knife. They thought that they were going to beat Raju as they were inimical towards Raju, therefore, they also followed those persons while concealing their identity. Surendra Singh inflicted a sword blow on the stomach of Raju, accused Chander inflicted a knife blow on the ribs of Raju, Girraj ran towards Saboo while other accused Gyan, Gijju and Bhooriya inflicted knife blows to Raju. After seeing the incident, they left for their house in a Rickshaw. In cross-examination, he admitted that Raju, Saboo and Prem Singh were his friends. He further admitted that 7 or 8 false cases of inflicting knife blows are pending against him and Arjun, Tillu Prem Singh, Saboo and Raju were also co-accused in some of those cases. After seeing the incident, they left for their house in a Rickshaw. In cross-examination, he admitted that Raju, Saboo and Prem Singh were his friends. He further admitted that 7 or 8 false cases of inflicting knife blows are pending against him and Arjun, Tillu Prem Singh, Saboo and Raju were also co-accused in some of those cases. One of those cases is Under Section 307 IPC and others are Under Section 324 IPC. Surendra Singh was also a co-accused along with him in some of the cases. The deceased Raju stayed with him and therefore, Surendra Singh accused was inimical towards him also. He knows Surendra Singh and Bhooriya as they lived in his Mohalla. While returning, they had passed through Nayapura Police Station and Surajpole Police Choki but they did not make any report in any of those Police Stations. His statement was recorded by the Police on 28th December, 1978. He has been cross-examined at great length. Learned counsel for the accused-appellants have criticised his evidence and have submitted that his evidence cannot be relied upon for the following reasons: (a) He was not named in the FIR as an eye witness and this witness did not tell anybody that he had seen the incident. Then how could the Police come to know that he was an eye witness; (b) His statement Under Section 161 Cr. PC was recorded on 28-12-1978 after 10 days of the incident, though he was in Kota even according to him on 26th and 27th. The prosecution has not explained the delay; (c) He himself is involved in 7 or 8 Criminal cases; (d) His going to the hospital late in the night is highly improbable; (e) He did not inform any Police Station though he had passed through them. According to evidence, a Constable was deputed with Asha. Neither Asha nor that Constable deputed along with Asha has been examined to prove that he had gone to meet Asha. 9. Prem Singh (PW 3)'s statement is also on the same lines. He has further deposed that the Compounder was trying to stop the accused persons and that Saboo was standing between Bed Nos. 39 and 40. He has staled in the Court that he had gone to Baroda which fact does not find place in his statement recorded Under Section 161 Cr. PC. He has further deposed that the Compounder was trying to stop the accused persons and that Saboo was standing between Bed Nos. 39 and 40. He has staled in the Court that he had gone to Baroda which fact does not find place in his statement recorded Under Section 161 Cr. PC. He has also admitted that they did not make any report either in Nayapura Police Station nor at Gumanpura Police Choki or Surajpole Choki because they were afraid of the accused party specially Surendra Singh. His statement was recorded by the Police on 2-1-1979. His statement was also criticized by the learned Counsel for the appellants on the same lines as that of PW 2 Brij Raj Singh. 10. Saboo (PW-4) is an important witness. He has deposed that on 17-12-1978 at about 8 p.m. he was going to his house from the shop and saw that Surendra Singh, Chander, Bhooriya and Akber were beating Prem Singh and Raju and they ran away, A report was also made to the police and thereupon, Raju and Prem Singh were taken to the hospital for treatment and Raju was admitted in hospital and Prem Singh stayed with him. Thereafter, he and Asha went to Gumanpura to take blanket for Raju and when they went to the liquor shop at Gumanpura, Khairati, Chander, Gijju assaulted and Asha received injuries on his leg. Thereupon, another report was lodged and Asha was also admitted in the hospital in Surgical Ward 'B' and he also received injury near his ribs and was admitted in Surgical Ward 'A'. He was lying on the floor near the bed of Raju as no bed was provided to him. On 18-12-1978 he was discharged from the Hospital at about 10 or 10.30 a.m. but he remained in the hospital to attend Raju. At about 10.30 p.m. Raju had taken some medicine as advised by the doctor and went to sleep and he was lying in the corridor and reading some book. After about 10-15 minutes, he heard some cry asking the Compounder as to where was Raju, he got up and saw the accused persons. At about 10.30 p.m. Raju had taken some medicine as advised by the doctor and went to sleep and he was lying in the corridor and reading some book. After about 10-15 minutes, he heard some cry asking the Compounder as to where was Raju, he got up and saw the accused persons. The accused persons after seeing him, told that Raju will also be here, thereupon Chander inflicted a knife blow on the left side of the chest and Surendra Singh inflicted a sword blow on his stomach, and when he shouted for help, other accused persons also inflicted injuries by knife on Raju. Accused Khairati asked Girraj to kill him (Saboo) also and thereupon, Girraj inflicted a sword blow on Saboo which hit him on his left leg and thereupon, Saboo tried to conceal himself under the bed. Chander inflicted knife blow to Saboo and Girraj inflicted another blow by sword which hit him on his left hand, and thereafter, the accused persons ran away. Some patients took him out from below the bed and took him to Raju. Raju was lying on the floor below his bed and was profusely bleeding. Meanwhile, doctor came. Raju and myself were taken to the Compounder's room for treatment. Dressing was done to him and he was made to lie on a bed. Raju had died on the trolley. The police came and recorded his statement (Ex.P 2). In cross-examination, he admitted, that he was convicted by the Chief Judicial Magistrate for one year on the complaint of Khairati. He also admitted that Girraj has also lodged a case against him Under Section 307 IPC in which some compromise had taken place. He was also convicted in some other criminal case for four years. A false case is still pending against him for inflicting an injury to Khairati and that he was a witness in a case for firing by Tillu and Arjun on Shyam, Khairati and Bhooriya etc. The blanket which was used by Saboo was not available and was missing. He was unable to say as to which book he was reading whether it was a comic or of some religious nature or was a course book. The police did not recover the book from the place of occurrence. Several contradictions have been brought out in his lengthy cross-examination. 11. He was unable to say as to which book he was reading whether it was a comic or of some religious nature or was a course book. The police did not recover the book from the place of occurrence. Several contradictions have been brought out in his lengthy cross-examination. 11. Learned counsel for the appellants have criticised the evidence of this witness on the following ground. (i) This witness is an accused in several case and has been convicted for various offences; (ii) According to this witness, he was taken out from under death the bed by some patients and was taken to the Compounder's room on a trolley along with Raju, whereas the Investigating Officer has stated that they saw Saboo lying underneath the cot and was taken out by the police; (iii) His name has not been taken by Dr. K. Lal or by PW-1 Surendra Singh and PW-15 Amar Chand; (iv) No evidence has been produced to show that Saboo was admitted in the hospital on 17th night; though in fact, if he was admitted as deposed by him, there must have been a bed ticket and adverse inference should be drawn against the prosecution for with-holding the documentary evidence of this nature. Not even the injury report or the police report alleged to have been made has been produced by the prosecution; (v) Neither the Compounder nor the doctor nor even the Ward Boy has supported Saboo's theory that he was admitted in the hospital or was discharged on 18th morning; (vi) His story that he was there in the hospital to attend Raju cannot be believed. While in cross-examination, Saboo was bold enough to say that he was not friendly with Raju, though he admitted in the other breath that they had remained together in jail. While in cross-examination, Saboo was bold enough to say that he was not friendly with Raju, though he admitted in the other breath that they had remained together in jail. Saboo has admitted at one stage in his cross-examination that it was Tillu who was attending Raju In the hospital but this Tillu has not been examined; (vii) This witness has further admitted that he had not seen Khairati and Gijju accused appellants personally but had named them as told by other patients; (viii) The theory of Saboo that he was reading the book cannot be believed as the Compounder has stated that the lights had been put off and there was darkness in the ward; (ix) Several contradictions have been pointed out which have been brought in his lengthy cross-examination. 12. PW 5, Dr. K. Lal who was on duty on 18-12-1978 has deposed that the Compounder of Surgical Ward 'A' came running to him and told him that murder had been committed in the Ward; so he went with him where he saw one patient lying on the trolley in the Compounder's room. His name was Raju and he died soon thereafter on the trolley itself. He wanted to telephone to the police. The Compounder told that he had already informed the Police. Thereafter, he informed the Chief Medical and Health Officer. He has deposed that there was one more person who had received injury along with Raju and he did his dressing and he has not given the name of the other person. 13. PW 6 Charan Singh is the Autorickshaw driver. He did not recognise the accused persons and was unable to say whether they had Come to the hospital in his Auto rickshaw. 14. PW 7 is Babulal who is uncle of deceased Raju and is a formal witness only. PW 8 is Rajendra Tripathi who is Police Photographer. PW 9 is Ajeet Singh who was ASI Nayapura Police Station on 18-12-1978 who had gone to the Hospital after receiving information from the Hospital and recorded the statement of Saboo(Ex. P 2). He has deposed that when they reached the Ward in the Hospital, Saboo was hidden under the bed and that they had taken him out from under the bed and took his statement after making him lie in the bed. 15. P 2). He has deposed that when they reached the Ward in the Hospital, Saboo was hidden under the bed and that they had taken him out from under the bed and took his statement after making him lie in the bed. 15. PW 10 is Om Prakash who is another Auto rickshaw Driver who has been declared hostile. PW 11 is Gafoor Mohd., PW 12 Chander Singh, PW 13 Rajendra Kumar and PW 14 Mangilal are formal witnesses. PW 15 Amar Chand is the Ward-boy who was posted in Surgical Ward 'A'. He has also been declared hostile. He does not name Sabu that he was attending on Raju. PW 16 is Dr. M.M. Mishra, Medical Jurist, Kota who who had examined Rajendra Kumar s/o Ramdutt on 17-12-1978 and on 18-12-1978 had examined Sabu and conducted the post mortem of Raju on 19-12-1978. PW 17 is Arjun Das who had filed a report in the Police Station Gumanpura Kota about the incident when Asha was given beating by Chander etc. 16. PW 18 Kunj Behari, PW 19 Narain Singh, PW 20 Ram Singh, PW 21 Chhoga Lal are all formal witnesses; whereas PW 22 Kishan Gopal, PW 23 Jumma Khan, PW 24 Nathu Lal and PW 25 Mahmood Hussain have have been declared hostile. PW 26 Babbu is also a formal witness of recovery. PW 27 Chhoga Lal has also turned hostile. PW 28 B.R. Neemawat who was Dy. S.P. has deposed that on receiving telephonic message on 18-12-78, he went to the hospital along with Ajeet Singh (PW9). The statement (Ex. P 2) of Sabu was recorded by Ajeet Singh in his presence, on the basis of which FIR was registered. He has also deposed that before he reached the hospital at about 11.15 p.m., Raju had died. PW 29 Shivraj Singh is the Investigating Officer. 17. The accused appellants in their statements recorded Under Section 313 Cr.PC have stated that they have been falsely implicated by the witnesses who are inimical towards them. 18. Accused Khairati had examined one witness Shamsu Rehman as DW 1 but since Khairati has been acquitted by the trial court, it is not necessary to consider evidence of this witness. 19. We have gone through the voluminous evidence led by the prosecution and are constrained to remark that the prosecution has miserably failed to bring home the guilt of the accused persons. 19. We have gone through the voluminous evidence led by the prosecution and are constrained to remark that the prosecution has miserably failed to bring home the guilt of the accused persons. The prosecution has not produced any independent witness. After all, the incident had taken place in a Ward in the Hospital and admittedly, other patients were present in the Ward itself. But none of them have been examined by the prosecution. Kanti Prasad, Gopi Lal, Kashmira and Abdul Sattar were named in the calender of witnesses at SI. No. 7 to 10 as eye witnesses being patients near the bed of Raju but they have not been examined. No reason has been assigned by the prosecution for not examining them Gopi Lal and Kashmira were present in court on 15-11-1980 but they were not examined. Similarly, Kanti Prasad and Abdul Sattar were also present in court in pursuance of the summons sent by the court on 21-2-1981 but they were also given up by the prosecution. PW 4 Saboo who is the star witness on behalf of the prosecution cannot be belied for obvious reasons. We have carefully considered his statement and are unable to find that he is a reliable witness. According to him, he was admitted in the Hospital on 17th night. Admittedly, there should have been some document in the nature of injury report or Bed Head Ticket showing that he was admitted in Surgical Ward 'A' and was given some treatment but the prosecution has failed in its duty to produce any documentary evidence in support of his version, though admittedly it must be in existence and an adverse inference has to be drawn against the prosecution that if they had been produced, they would not have supported the prosecution case and would have believed the statement of PW 4 Saboo that he was admitted in the Hospital in Surgical Ward 'A', on 18-12-1978. Moreover, neither the Doctor nor the Compounder nor the Ward Boy who have appeared as prosecution witnesses have deposed that he was admitted in the Ward on 18th and that he was injured along with Raju, as alleged by the prosecution. His story that he was present in the Hospital at the relevant time, and was reading some book is also belied by the prosecution evidence itself. His story that he was present in the Hospital at the relevant time, and was reading some book is also belied by the prosecution evidence itself. The Compounder has stated that there was darkness in the Ward as the light had been put off. It is not understandable as to how Saboo was reading any book at that time. It was between 10.30 p.m. to 10.45 p.m. on 18-12-1978 when it is quite dark and quite chilly. Moreover, Saboo is unable to tell as to what type of book he was reading. Whether it was a course book or it was a story book and even that book was not available or found at the scene when the police arrived there. It is not known what happened to the book which Saboo is supposed to be reading at the time of incident. The story as narrated by the witness Saboo seems to be improbable. Similarly, the story that Saboo was taken out from under the bed by the patients and he was put on the trolley along with Raju and was taken to the Compounder's room for treatment, is also belied when the police witnesses including the Investigating Officer state that Saboo was lying under the bed and he was taken out by the police after they had reached the place of occurrence. It has also come in evidence that Raju was lying on the trolley in the Compounder's room when the police had arrived in the hospital. Saboo has admitted that one Tillu was attending on Raju but this Tillu has not been examined by the police. Apart from that, there are several other material contradictions in his statement and Parcha Bayan, FIR. More over, it has also come in evidence that Raju and Saboo were in one group and the accused persons were in the other group and criminal cases have been pending against both the groups. Both the groups are inimical to each other. Thus, the evidence of Saboo does not inspire any confidence. 20. Other two witnesses PW2 Brijraj Singh and PW 3 Prem Singh also do not seem to be truthful witnesses. There was no occasion as to why they should have gone to the hospital in such late hours during winter season. Both the groups are inimical to each other. Thus, the evidence of Saboo does not inspire any confidence. 20. Other two witnesses PW2 Brijraj Singh and PW 3 Prem Singh also do not seem to be truthful witnesses. There was no occasion as to why they should have gone to the hospital in such late hours during winter season. The auto-rickshaw drivers who were produeed to show they had come to the hospital in their auto rickshaw have not supported the prosecution case. They were not named in the FIR or Parcha Bayan of Saboo. The The police had examined PW-2 Brijrajsingh Under Section 161 Cr. PC. on 28-12-1976 i e. after 10 days of the incident and examined PW-3 Prem Singh on 2-1-1979 after about 15 days. The prosecution has not explained this delay which by itself is fatal to these witnesses. Moreover, both these witnesses did not make any report to any of the Police Stations which they happened to pass on the fateful night after the incident and their explanation that they had gone out of station, doss not seem to be correct. Moreover, they have contradicted each other when one of them says that they had gone to see Asha first and the other says that they had gone to Raju first. They are also involved in number of cases. They are also inimical towards the accused party and interested in deceased and his group. 21. Thus, we find that the prosecution has not been able to prove its case. The accused appellants are entitled to benefit of doubt. We are very sorry that the prosecution has failed to bring on record the real culprits of such a henious crime that a murder had taken place in the ward of a Hospital but we cannot help, since the evidence produced by the prosecution does not inspire confidence and we are unable to hold the accused appellants guilty of the offences charged. Hence, we give them benefit of doubt. 22. In the result both the appeals are allowed, the judgment and conviction and sentences passed against the accused appellants by the trial court are set aside and the accused appellants are acquitted of the charges levelled against them. Accused appellants Girraj Ghoda and Gijju are already on bail. They need not surrender and their bail bonds are discharged. Rest of the accused appellants are in jail. Accused appellants Girraj Ghoda and Gijju are already on bail. They need not surrender and their bail bonds are discharged. Rest of the accused appellants are in jail. They may be released forthwith, if not required in any other case pending against them in any court or pending investigation.Appeal allowed. *******