Charanjit Talwar, J. ( 1 ) ON 28th of April 1983 at 8. 25 A. M. a report wasgot recorded by 0m Prakash resident of village Daryapur in the police postbawana (within the jurisdiction of police station Narela) that dead body ofone 0m Wati Wife of Ram Singh was lying in a pool of blood on a cot inthe court-yard of her house. This report was entered into the daily diaryand its translation in English has been exhibited as Ex. PW16/a. The policepost informed the police station about the incident, inspector. Ram Gopal,station House Officer, had left the Police Station on patrol duty by the timethis report reached there. On being informed about the incident he reachedthe spot in village Daryapur wheie A. SI. Gabbu Lal of the police postbawana was already present. The dead body of 0m Wati was found lyingin a pool of blood on a cot in the court-yard of her house as reported. Thestation House Officer found a number of persons of the village present at thespot. In his report which was despatched at 10. 45 A. M. he wrote that "i, theinspector asked the persons standing there whether anyone has seen the occurrence and if so he could make his statement but no-one stated to have seen theoccurrence. Neither the weapon of offence was recovered from there nor Ransingh the husband of the deceased found present at the spot. The dead bodyof 0m Wati was examined and one deep injury caused with sharp-edgedweapon which (injury) was stained with blood was found present on thefront of the neck and under it there was a cut mark in the neck which wascaused with a sharp-edged weapon. . . . . . . . . . . . ", (italics added ). ( 2 ) THE date and time of occurrence according to that endorsement was night intervening 27th and 28th of April 1983. On receipt of this report/endorsement the formal FIR Ex, Public Witness 15/b was recorded at the Police Stationat 11. 20 A. M. ( 3 ) THUS till 10. 45 A. M. on 28th of April 1983 no clue was foundby the investigating officer about the assassin. The prosecution case,however, is that Sunil Kumar who was a witness to his mother s murder byhis own father was present in the house at the time when the S. H 0. reachedthere. 20 A. M. ( 3 ) THUS till 10. 45 A. M. on 28th of April 1983 no clue was foundby the investigating officer about the assassin. The prosecution case,however, is that Sunil Kumar who was a witness to his mother s murder byhis own father was present in the house at the time when the S. H 0. reachedthere. Sunil Kumar, Public Witness 3, in his testimony has stated that he was 13/14years of age at that time. His father was maltreating his mother andtherefore, his maternal grand-father had brought her to the parental housesituate in village Pitampura where he (the witness) had already been takenfor continuing his studies. His mother had left his father s house 2 yearsprior to the incident. However, on intervention of near relations she cameback to her husband s house at village Daryapur but he continued to staywith his grand parents at Pitampura. He further deposed that aftercompleting his 8th class examination in April 1983 which finished about 2to 4 days prior to the incident he joined his parents in village Daryapur. According to the witness on 27th of April 1983 at about 6. 30 P. M. hisfather Ran Singh had demanded Rs. 400. 00 from his mother. He threatened that if the money was not given to him he would not let the wheat come from the fields to the house nor would he allow the wheat to be sold. Hismother gave his father Rs. 200. 00 only as she had no more money. Hestated that his grand-father (father s father) lived in a separate house in thevillage. In the house of his parents nobody was there as his younger sistermanju had also gone with his maternal uncle, Jai Parkash, on 26th ofapril 1983. At about 7. 30 or 8 P. M. he (the witness) had gone upstairs toserve food to the accused but he refused to take the same. The accusedenquired from him as to who had been harvesting the crop and fromwhom the wheat was to be threshed. On the witness s pleading ignorancethe accused got angry and shouted at him to the effect that he along withhis mother should go back to Pitampura otherwise he would kill both ofthem. The witness came downstairs and told his mother about what hisfather had said. On the witness s pleading ignorancethe accused got angry and shouted at him to the effect that he along withhis mother should go back to Pitampura otherwise he would kill both ofthem. The witness came downstairs and told his mother about what hisfather had said. His mother then assured him that let the accused kill herbut no harm would be caused to the witness. ( 4 ) THE witness further stated that his mother had spread to separatecost in the court-yard; they went to bed but kept the light on during thenight out of fear. His mother tried to console him by keeping her handon him but she soon went to sleep. He, however, could not go to sleep. It is appropriate at this stage to quote from the testimony of the witness :"all of sudden, I heard the shrieks of my mother and saw herbleeding from her neck. My mother s body was trembling. I saw myfather standing by the side of the head of my mother with a spadein his both hands raised over his head. In my presence, he gave a blow with the said spade hitting my mother s forehead. He hadgiven another blow of the spade, but I do not remember, the site,as I had become completely grief struck while lying on my cot. Thereafter, the accd. went upto his room with the said spade Iwat still apprehensive of the accused and thinking that be mightnot kill me, I ran towards the fields as it was moonlit night. I keptsitting by the side of harvested crop of wheat collected in a heap ofpulleys. At about 7 or 7. 30 A. M. when I was returning to my home, I sawmy maternal uncle Dharamvir walking hastily towards our house. Both myself and Dharamvir came into our house in Daryapur. Thecot Ex. P. I is the same on which my mother was lying. The spadeex. P. 2 is the same which was used by my father in killing mymother. "according to this witness after witnessing the occurrence he left the houseout of fear and came back at about 7 or 7. 30 A. M. along with his maternaluncle, Dharamvir. The prosecution has not produced Dharamvir stated tobe the uncle of Sunil Kumar. ( 5 ) THE important fact to be noticed is that according to this witnesshe was present in his house at about 7 or 7. 30 A. M. along with his maternaluncle, Dharamvir. The prosecution has not produced Dharamvir stated tobe the uncle of Sunil Kumar. ( 5 ) THE important fact to be noticed is that according to this witnesshe was present in his house at about 7 or 7. 30 A. M. on the morning of 28thof April 1983. In his cross-examination he asserts that his statement wasrecorded by the police on 28th of April 1983 at the spot. He was sure thatthe statement was recorded prior to the time when the photographs of thedead body of his mother were taken. We would deal with the statement ofthis witness a little later, but at this stage to pinpoint the time when hisstatement was recorded we may notice that the prosecution has brought onrecord that the photographs were taken by the police photographer, Vajinderkumar, Public Witness 13, between 11. 45 A. M. to 12. 80 P. M. Public Witness 13 was a memberof the crime team which was led by SI, Verinder Singh, and had reachedthe spot at about II. 45 A. M. and had left the scene at about 12. 30 P. M. Therefore, on Sunil s own showing his statement had been recorded earlierto 11. 45 A. M. on that day. The S. H. O. , however, who has appeared as PW16, is categorical that he recorded the statement of Sunil after 1. 00 P. M. on28th of April 1983 by which time he had already completed the inquestproceedings and had sent the dead body along with inquest papers to themortuary. In reply to the court question he has stated that "i had recordedthe statement ofsunil after I P. M. on 28. 4. 83 when I had already sent theinquest papers and the dead body. " ( 6 ) THE dead body of 0m Wati was sent to the mortuary for autopsyvide application Ex. PWI/c. The emphatic assertion of the S. H. O. wasthat he bad sent the body by I P. M. on the date of occurrence. The time ofreceiving the body shown on the said application by the doctor who receivedit is however "545 p. m. on 28th of April 1983". The further avernment ofthe S. H. O. that he had sent the inquest papers along with the body is alsonot borne out from the endorsement of the doctor as he received the inquestpapers at 9. The time ofreceiving the body shown on the said application by the doctor who receivedit is however "545 p. m. on 28th of April 1983". The further avernment ofthe S. H. O. that he had sent the inquest papers along with the body is alsonot borne out from the endorsement of the doctor as he received the inquestpapers at 9. 00 A M. on 29th of April 1983. ( 7 ) THE plea on behalf of the appellant is that the S. H. O s testimonynot only about the sending of the body and the inquest papers at the timealleged but also about recording of statement of Sunil on 28th of April1983 is demonstrably false. The argument is that Sunil had not seen theoccurrence but a theory was propounded to that effect after the submission ofthe inquest proceedings at 9 A. M. on 29thofaplri 1983. It is urged thata false case involving the appellant herein was made up on 30/04/1983, the date of his arrest. ( 8 ) IN support of the testimony of the investigating officer that thebody of 0m Wati had been sent to the mortuary prior to I P. M. on 28thofaprill983theprosecutionhasproduced Public Witness 10, constable Urner Singhand Public Witness II, constable Satbir Singh who bad taken the body from the spot. Constable Umer Singh in his examination-in-chief did not say as to at whattime the body was handed over in the dead house but in his crossexamination he stated that they had left the village Daryapur at about 12. 30p. M. and had come straight to the mortuary. He further submitted thatthey had delivered the dead body and the inquest papers at about 2. 30p. M. to the concerned clerk on 28th of April 1983. He admitted that thes. H. O. had visited the dead house at about 9. 30 A. M or 10. 00 A. M. on29th of April 1983. i. e. the next day, on which date the postmortem wasconducted. He denied the suggestion that the body was removed at 4 P. M. on 28th of April 1983 and that they were not handed over the inquestpapers by the investigating officer on that day Constable Stabir Singhsupported his colleague constable Umer Singh. In his cross-examinationhe denied that they had handed over the dead body at about 5 P. M. andthat the inquest papers were delivered to the doctor at about 9. In his cross-examinationhe denied that they had handed over the dead body at about 5 P. M. andthat the inquest papers were delivered to the doctor at about 9. 30 A. M onthe next day i. e. 29th of April 1983 He re-affirmed that the dead body andthe inquest papers were delivered at about 2. 30 P. M. on 28th of April 1983itself. ( 9 ) AS we have noticed the endorsement on Ex. PW15/c clearlyshows that the body was delivered in the mortuary at 5. 45 P. M. on 28thof April 1983. The testimony of the constables, and also the S. H. O. thatby I P. M. on 28th of April 1983 the body had been despatched to themortuary is thus to be carefully scrutinised. ( 10 ) DOCTOR, L. T. Ramani, who conducted the postmortem hasappeared as Public Witness 18. He testified that the dead body was delivered at 5. 45p. M. on 28th of April 1983 and the inquest papers were received at 9 A. M. on the next day, i e. , 29th of April 1983. This version is completely atvariance with that of the police officials. In his examination-in-chief onthis aspect the doctor submitted that "application for postmortem Ex. PW15/c along with my signatures shows time of the arrival of the body in themortuary and time of the receipt of papers. In this case, the body wasreceived on 29th of April 1983 at 5,45 P. M. and the papers were receivedon the following day, i. e. , 29th of April 1983 at 9 A. M. The duty timingsare from 9 A. M. to 4 P. M. and after 4 P. M. if the body and the inquestpapers are brought, then only body is received and kept in the cold-storageand the papers remained with the constable and are taken by the mortuarystaff on the next day at 9 A. M. The application was received alongwith the inquest papers totalling. They all bear my initials and are numbered". ( 11 ) FROM the above statement at least one fact is very clear that thebody of 0m Wati was not delivered as claimed by the prosecution at 2. 30p. M. on 28th of April 1983. The S. H. O s assertion that it was sent to themortuary before I P. M. is also not correct as it was received only at 5. 45p. 30p. M. on 28th of April 1983. The S. H. O s assertion that it was sent to themortuary before I P. M. is also not correct as it was received only at 5. 45p. M. On this aspect another fact which has a bearing may be noticed. According to the prosecution s own showing the body was not removedfrom the house of the deceased prior to I P. M. on that day as alleged asher father Lal Chand who has appeared as Public Witness 2 admitted categorically that"the dead body was removed from the house at 4 A. M. ". ( 12 ) THE timings of the delivery of the dead body on the date ofincident by itself is not very important. What has to be seen is whether thecase of the prosecution that the inquest proceedings were conducted by thes. H. O. before I P. M. on 28th of April 1983 and further whether the inquestpapers were sent to the doctor along with the application for conductingthe post mortem is to be believed. Dr. Ramani while describing theprocedure for deposit of the body and the inquest papers has stated that theinquest papers were received by him on 9 A. M. on 29th of April 1983, i. e. ,the date on which the post mortem had to be conducted. According to theappellant the investigating officer had purposely not sent those papers on28th of April 1983 as by then the prosecution had no clue as to who hadcommitted the offence. The S. HO it is urged, after leaving the spot, preparedthe inquest proceedings in police station as in all the eight papers which weredeposited on 29th of April 1983 in the mortuary there is a stamp ofthe policestation on them which stamp would not have been used if these proceedingshad been conducted at the spot as alleged. Our attention has been drawnto the statement of Public Witness 15, head constable, Prem Pal Singh, the duty officerof the day, who stated that the seal of the police station is never removedfrom the police station and it is always kept by the duty officer. It has furtherbeen pointed out that the S. H. O. s attempt in his statement was to suppresshis visit to the mortuary in the morning of 29th of April 1983. It has furtherbeen pointed out that the S. H. O. s attempt in his statement was to suppresshis visit to the mortuary in the morning of 29th of April 1983. Theargument is that as the post-mortem could not proceed without the inquestpapers he (the S. H. O.) prepared the inquest proceedings in the police stationand personally went to the mortuary to hand over the papers, this is borneout by the endorsement on Ex. Public Witness 15/c to the effect that those were received at 9 A. M. on that day. ( 13 ) AS has been noticed above, the two constables are definite thatthe papers were handed over at 2. 30. P. M. on 28th of April 1983. Public Witness 10,umer Singh stated that "we had delivered the dead body and the papers atabout 3. 30 p. m. to the concerned clerk" and Public Witness II, Satbir Singh stated that"in fact we had delivered the dead body and the papers at about 2. 30 P. M. on 28. 4. 83 itself". ( 14 ) AFTER giving our careful consideration to this aspect of the casewe are of the view that the endorsement on Ex. Public Witness 15/c that the dead bodywas received at 5. 45 P. M. on 28th of April 1983 and the papers regardinginquest proceedings were received at 9 A. M. on 29th of April 1983 has tobe accepted in toto. Public Witness 2, Lal Chand s statement that the body wasremoved from the house at about 4 P. M. seems to be true. The constableswho are staling to the contrary have to be disbelieved. The answer of thes. H. O. to the Court question which we have quoted above is also to beheld to be false. The inquest papers, it is apparent were not sent along withthe body but were delivered at 9 A. M. on the next day as those were notprepared on 28th of April 1983 as alleged. ( 15 ) THE purpose of the S. H. O. s attempt to prove that the body andthe inquest papers had been despatched by I P. M. , it is urged, was to showthat the statement of Sunil was recorded on 28th of April 1983 after I P. M. as his name did not figure in the inquest proceedings. ( 15 ) THE purpose of the S. H. O. s attempt to prove that the body andthe inquest papers had been despatched by I P. M. , it is urged, was to showthat the statement of Sunil was recorded on 28th of April 1983 after I P. M. as his name did not figure in the inquest proceedings. Actually the paperswere not deposited on that date but on 29th of April 1983 meaning therebytill then it was a blind murder. It is further submitted that having made theendorsement at 10. 45 A. M. on the day of incident to the effect that he didnot find anyone at the scene of occurrence who could throw any light aboutthe murder he (the S. H. O ) had to admit that Sunil s statement who claimsto be there at the spot, was recorded after the sending of the body and thepapers. The S. H 0 s movement on that day till after sending of the saidendorsement have been proved on record and we believe the fact that he didreach the spot and did make the endorsement as 10. 45 A. M, on 28th ofapril 1983. There is no reason for disbelieving the S. H. O. on this aspectof his visit. Sunil, if he had been present at the spot must have and wasexpected to have disclosed the facts to the S. H. O. at that time. As we havenoticed above according to Sunil he had made his statement before thephotographs of the dead were taken and that time has been pin-pointed bypw13whohadleft the scene by 12. 30 P. M. Incase the statement wasrecorded prior to taking of the photographs the inquest report would nothave been silent about the occurrence having been witnessed by Sunil. ( 16 ) THE assertion of Sunil that he had made the statement beforethe body of his mother was removed has thus to be held to be false. Thenon-production of Dharamvir said to be uncle of Sunil who had accompaniedsunil from the fields to the house at about 7 or 7. 30 A M. also throws adoubt about Sunil s being present in the house at that time with Dharamvir. Thenon-production of Dharamvir said to be uncle of Sunil who had accompaniedsunil from the fields to the house at about 7 or 7. 30 A M. also throws adoubt about Sunil s being present in the house at that time with Dharamvir. The only legitimate conclusion which can be arrived at under the facts andcircumstances of this case is that Sunil was not present in the house at thetime alleged and that his statement had not been recorded till after I P. M. aswas claimed by the investigating officer. Therefore, the defence varsion thatsunil was in fact not an eye-witness assumes great importance. ( 17 ) IT is urged that it was only on 30th of April 1983 that a finaltheory to involve the appellant herein was propounded in which Sunil hadto be shown as an eye witness to the occurrence. For that reason it issubmitted that a false recovery, on 30th of April 1983, of a spade allegedto have been used in the crime was shown from the shrubs near the canalof the village on the so called disclosure statement the accused. Theprosecution case on this aspect is that at 4. 30 P. M. on 30th of April 1983sunil accompanied by his maternal uncles Hari Singh and Chand Rup hadgone to the Police Station to find out about the progress of the case wherethey were asked to join in a party which was to go and arrest the appellantwho, it was informed; was sitting on a culvert of a canal near the village ofdaryapur. On reaching the spot the police party over-powered the accusedwho had tried to run away and arrested him. On interrogation he made disclosure statement that he could get recovered the spade (the weapon of offence)which he had concealed near the small bushes at the corner of the canal. Hisstatement Ex. Public Witness 3/b was recorded. On his pointing out the spade wasrecovered and it was taken into possession vide memo Ex. PW3/d. He wasbrought to the Police Station where the blood stained kurta and pyjamaex. P. 3 and P. 4 which he was wearing were got removed. The seizurememo is Ex. Public Witness 3/a. ( 18 ) THE argument is that to show the presence of Sunil at the timeof occurrence he was made to sign all the seizure memos, disclosure statementand the pointing out statement of the 30th of April 1983. P. 3 and P. 4 which he was wearing were got removed. The seizurememo is Ex. Public Witness 3/a. ( 18 ) THE argument is that to show the presence of Sunil at the timeof occurrence he was made to sign all the seizure memos, disclosure statementand the pointing out statement of the 30th of April 1983. The disclosure statement is Ex. Public Witness 3/b, the memo regarding taking the clothes of the accused isex. ,pw 3/a, the memo of personal search of the accused is Ex. Public Witness 3/c andthe memo regarding pointing out of the spade is Ex. Public Witness 3/d. All of them havebeen signed by Sunil Kumar. The submission is that a young boy of 13/14years of age was made a witness to all these memoranda but not his otheruncle who was supposed to have accompanied him. However. it is urged, thatsunil was not made an attesting witness to the memos regarding the possession of the articles like the blood stained cot, a pair of ladies shows andthe blood stained gadda at the house of the deceased on 28 th of April 1983,where he was allegedly present. Public Witness 8, Hari Singh who had accompaniedsunil to the Police Station on 30th of April 1983 submitted that whenthe accused was apprehended he had also a blood stained khes in hispossession. That khes was taken into custody but has not been produced. The other uncle Chand Rup who, it is alleged, accompanied Sunil to thepolice Station has been produced as Public Witness 4. However, in his testimony hedoes not refer to the incident of 30th of April 1983 at all. He has notattested any of the seizure memos or the disclosure statement although he isa witness to the seizure memos of 28th of April 1983. ( 19 ) AS Chand Rup has not stated anything about the incident of30th of April 1983 and neither is he an attesting witness to any of thememos made on that day it can sefely be held that he had not accompaniedthe police party or had gone to the Police Station. While questioning theaccused in his statement under Section 313of thecodeof Criminal Procedure the learned trial court has taken it for granted that Chand Rup,one of the uncles of Sunil, had accompanied him to the Police Station on30th of April 1983. The fact is not proved as Chand Rup does not evenallege it. While questioning theaccused in his statement under Section 313of thecodeof Criminal Procedure the learned trial court has taken it for granted that Chand Rup,one of the uncles of Sunil, had accompanied him to the Police Station on30th of April 1983. The fact is not proved as Chand Rup does not evenallege it. ( 22 ) AFTER carefully scrutinising the testimony regarding the apprehension of the accused on 30th of April 1983 and the statements leading tothe recovery of the spade we find that there are so many discrepanciestherein. The argument that Chand Rup was not a witness of the versionas far as the event of 30th of April 1983 is concerned, is to be upheld. Theother witness Hari Singh, Public Witness 8, has made up a fact which is not established. According to him the accused when arrested was having a bloodstained khes. That khes has not been produced. Actually a khes was taken intopossession on 28th of April 1983 from the house of the deceased. Thus,sunil s testimony to the effect that "on 30. 4. 83 at about 4. 30 p. m. I, mymaternal uncles Hari Singh and Chand Roop had gone to police stationand had enquired about the arrest of my father" cannot be accepted becauseof our finding that Chand Rup bad not accompanied him. Further Harisingh s testimony regarding the recovery of khes and about the manner inwhich the accused was over-powered also does not inspire confidence. Theplea of the accused that he was a casual labourer at Subzi Mandi, Delhi. and was away from his house on 27th of April 1983 and had surrendered inthe Police Station on his own cannot be brushed aside. The argument is thathe came to know that his brothers and his father had been illegally takeninto custody for the murder of his wife and therefore he went to the Policestation to surrender. ( 23 ) WE are of the view that Sunil has been tutored to make a falsestatement. He was not an eye-witness to the occurrence. He was evennot present on 27th and 28th of April 1983 at the house of his parentsat village Daryapur. We are further of the view that till the inquest paperswere delivered in the mortuary on 29th of April 1983 the prosecution hadyet to find out a convenient eye-witness. He was not an eye-witness to the occurrence. He was evennot present on 27th and 28th of April 1983 at the house of his parentsat village Daryapur. We are further of the view that till the inquest paperswere delivered in the mortuary on 29th of April 1983 the prosecution hadyet to find out a convenient eye-witness. The theory that the accused hadcommitted the crime and the occurrence had been seen by Sunil was propounded much later. The investigation, it appears to us, is absolutelytainted. The recovery of the spade at the instance of the accused or hisarrest as alleged on 30th of April 1983 is very doubtful. ( 24 ) THE only piece of evidence which can be read against theaccused is that when arrested on 30th of April 1983 he was found wearingblood stained clothes (kurta Ex. P. 3 and pyjama Ex. P. 4 ). On analysis ofthe blood found on the clothes it matched with the blood group "b" of thedeceased. There is no doubt that this fact by itself raises a strong suspicionagainst him. However, it cannot be made the basis of conviction as theprosecution has failed to prove that the blood group of the accused is not"b" as well. The probability of two human beings having the same bloodgroup cannot be ruled out, especially, as his blood sample was not gotanalysed. The possibility that a labourer or an agriculturist like theaccused having his own blood stains on his clothes cannot be ruled out. We have examined the clothes Ex. P. 3 and Ex. P. 4. Those are not bloodsplattered. It seems from the cut marks that kurta bad two or three stainsand pyjama about four. We are of the view that the onus to disprove thecharge framed against him did not shift only because of the presence of a few blood stains on his clothes. ( 25 ) IN the present case afalse witness, the only eye-witness, hasbeen introduced by the prosecuting agency. We have discarded his testimonyfrom consideration. The second circumstance, i. e. , the circumstance ofrecovery of the spade at the instance of the appellant has also been held tobe doubtful for the reasons discussed above. The strong suspicion on accountof matching of the blood group by itself cannot be considered in the factsof this case to establish the charge. We have discarded his testimonyfrom consideration. The second circumstance, i. e. , the circumstance ofrecovery of the spade at the instance of the appellant has also been held tobe doubtful for the reasons discussed above. The strong suspicion on accountof matching of the blood group by itself cannot be considered in the factsof this case to establish the charge. ( 26 ) THE result is that we give benefit of doubt to the appellant andallow the appeal. The impugned judgment of conviction and the ordersentencing the appellant to life imprisonment are set aside. The appellant be set at liberty forthwith, if not required in any other case.