JUDGMENT 1. - Appellant Kishore alias Kirpal has been convicted Under/Section. 302, Indian Penal Code and sentenced to imprisonment for life and a fine of Rs. 100/-by the learned Addl. Sessions Judge, Rajasamand, by his judgment dated 25-3-1983. He has come up in appeal. 2. The prosecution story briefly stated is as under: PW 9 Mahant I algiri has a 'Jamat' of 25 saints (SHANT) and he is the 'Mahant' of that 'Jamat'. Deceased Sadhu Dadhu Ram, who was known as Bhandari, originaly belonged to some other Jamat but had joined the Jamat of Mahant Lalgiri. Accused Kishore was the Mahot of the elephant kept by Lalgiri's Jamat. This Jamat was to reach Nathdwara on 12-12-1981. It appears that the deceased Bhandari along with PW7 Jagdish and the accused Kishore had reached village Bijnoi on their way to Nathdwara and had night halt there. It is alleged that at about 6.00 a.m. on 11-12-1981 deceased Bhandari and accused Kishore along with the elephant had gone to take bath the "Bawai' near village Bijnoi. They did not turn up for about two hours. Where upon Jagdish made a search for them. He found the dead body of Bhandari lying in the Bawari. He, thereupon, informed Sarpanch Gamer Lal PW 2 of this incident. Gamerlal then went to Police Station Nathdwara and lodged the First Information Report Ex. P 1 at about 10 00 a.m. The police started inquiry under Section 174 Cr. PC Khem Ram PW 18 reached the spot and inspected the site and prepared Ex. P 2 site Inspection Note He also prepared Inquest Report of the dead body of deceased Bhandari. He has also recovered some blood stained earth from the spot vide Ex.P 4. He is also alleged to have recovered a Mala dana a towel of the deceased said to be lying at the spot, vide Ex P. 6. The dead body was sent for post mortem examina-tion at about 1.00 p.m. Dr. Magh Kumar Sirohia PW 10 carried out the post mortem examination and found that there was an incised wound of 3" x ⅛" x 2 size situated at the root of neck posteriorly and over left supra scapular region little obliquely. The wound while passing had cut -down skin, fescia, muscles and vessels which came in the way and reached to the cervical spines which were visible through the wound. The wound while passing had cut -down skin, fescia, muscles and vessels which came in the way and reached to the cervical spines which were visible through the wound. According to him this injury had been caused by a sharp edged weapon. He was, further of the opinion that the cause of death was massive haemorrhage from the incised wound leading to shock and syncope; Asphyxia resulting due to drowning, and that the death had taken place within about 8 hours from the autopsy. He also found that the small intestines contained semi-digested food only and large intestines were empty. It, further, appears that at about 2.00 p.m. after the post mortem report was received, the case was registered under Section 302 Indian Penal Code and further investigations were taken over by Shri Sangram Singh along with the Dy. S.P. Shri Anand Vardhan PW 16 and PW 12 respectively. It will also be proper to mention here that the FIR was sent to the Police Station Nathdwara where it reached at about 6 00 p.m. and the formal case under Section 302 Indian Penal Code was registered there at, about 6 00 p.m. Later the accused Kishore was arrested at his village Udaipur and was brought to Nathdwara, where his formal arrest was made by Shri Sangram Singh PW 16 vide Ex.P. 12. It is also alleged that at the time of the arrest of the appellant a Hanry Sandow wrist watch and armed "BANDI" said to be belonging to deceased Bhandari were recovered from the person of the accused and later-on, on information said to have been given by the accused to Shri Anand Vardhan, Dy. S.P. vide Ex.P. 10, an axe was got recovered from the accused vide Ex.P. 7. It also appears that during the course of the investigations one Fateh Singh PW1 was examined who is said to have heard the cries of the deceased and seen the accused coming out of the Bawri with an axe in his hand. After completing the investigations,the police put up challan against accused Kishore and he was committed to the Court of Additional Sessions Judge Rajsamand. He pleaded not guilty to the charge under Section 302 Indian Penal Code framed against him and claimed to be tried. The prosecution examined 18 witnesses and produced about 20 documents. After completing the investigations,the police put up challan against accused Kishore and he was committed to the Court of Additional Sessions Judge Rajsamand. He pleaded not guilty to the charge under Section 302 Indian Penal Code framed against him and claimed to be tried. The prosecution examined 18 witnesses and produced about 20 documents. He denied the prosecution story and examined one Udairam as his defence witness. After hearing the learned Public Prosecutor and the learned Counsel for the accused, the learned Addl. Sessions Judge convicted and sentenced the appellant as aforesaid. 3. We have heard the learned Counsel for the appellant and the learned Public Prosecutor and perused the record carefully. It appears that the learned Sessions Judge has relied upon the four types of evidence against the accused in order to find him guilty: 1. The direct testimony of Fateh Singh (PW 1); 2. The circumstances of the accused and the deceased being last seen together, as deposed by Jagdish (PW 7); 3. Recovery of the watch and Bandi of the deceased from the person of the accused; and 4. Recovery of the axe in pursuance of the information given by the accused. 4. The learned Counsel for the appellant submits that Fateh Singh is not at all a reliable witness and appears to be a faded up one. His conduct totally belies him the recovery of the watch and the Bandi of the deceased from the process of the accused is all highly doubtful as it could not be envisaged that the accused would be wearing watch and the Bandi by the deceased so that he can easily be sported. More it is not shown as to exactly where and in what circumstances the accused was arrested. So far as the recovery of the axe is concerned, it is said to be from an open field, not in possession of the accused and the axe has also not been found to be stained with human blood. The evidence of Jagdish PW 7 about the deceased and the accused being last seen together also according to him is unworthy of credence and in any case even if this circumstance of being last seen together with the deceased is accepted against the accused, it is not at all sufficient to hold the accused guilty. 5. The evidence of Jagdish PW 7 about the deceased and the accused being last seen together also according to him is unworthy of credence and in any case even if this circumstance of being last seen together with the deceased is accepted against the accused, it is not at all sufficient to hold the accused guilty. 5. The learned Public Prosecutor, how ever, supported the findings of the learned Additional Sessions Judge, and has urged that the case is fully established against the accused by direct as well as circumstantial evidence. 6. We have given our careful consideration to the contention and have also carefully scrutinised the evidence in the light of these contentions. 7. We are in agreement with the learned Counsel for the appellant that PW1, Fateh Singh does not appear to be a reliable witness at all and from his evidence it cannot be said to be established that he had in fact, seen the accused running from the Bawari with an axe in his hand while the deceased was lying in the Bawari. Fateh Singh is a resident of Bijnol and states that on the date of this incident, he had gone to village Mengalia to call Udairam, Mistri to set right his engine. He s ates that he had left his village at about 4.00 a.m. It took him 15 minutes to reach Mengatia. He left Mengatia at about 5.00 a.m. and reached near the Bawari at about 5.30 am It was then that he heard the cry (HAI RAM MAAR DIA) coming out of the Bawri and saw the accued running out of the bawari from the stairs carrying an axe in his hand. He also saw that a Mahatma was lying in the Bawari with a lone cloth (Langota) on Having seen this he came towards the village and informed Shankarlal Teli about this idcident whereupon Shankarlal Teli told him that the Sarpanch Gamer Lal had already gone to report the matter. He also claims that he knew the accused from before this incident because when the three Sadbu were staying in the village Bijnol, the other Sadhu called him by name. A careful examination of the statement of this witness goes to show that no reliance con be placed on him and the story put forward by him does not at all inspire confidence. A careful examination of the statement of this witness goes to show that no reliance con be placed on him and the story put forward by him does not at all inspire confidence. In the first place his conduct in challenging the accused or going to the rescue of the deceased appears to be wholly unnatural. Even if it is believed, that the accused had given him a threat as alleged by him, the accused had already left the place in his presence and, therefore, it was not difficult for him to go into the Bawari and see the real condition of the Mahatma, who according to him was lying in the Bawari but he did not do so. Them on reaching the village be alleges to have informed Shankar Lal Teli about this incident and was told by Shankar Lal Teli that the Sarpanch had already left for the Police Station to report the matter. Fateh Singh cannot be believed to have seen this incident at about 6.00 a m as alleged by him because if he had seen this incident at about 6 00 a.m. at the Bawari and come to the village he must have informed Shankarlal Teli immediately. It should not have taken him more than about 3 hours for this purpose. As already stated above, Jagdish had already informed Gamer Lal about the death of Bhandari at about 9.00 a.m. and Gamerlal had left for the police station by that time. It was thereafter that Fateh Singh informed Shankarlal when Shankarlal told him that the Sarpanch had already gone to report the matter. It will not be out of place here to mention that Fateh Singh has tried to explain the reason for not informing Shankarlal Teli about this incident before 9.30 a.m. by saying that he had first gone to his engma as it was lying open. He set it right and then went to his house and thereafter he went to Shankarlal Teli. Now, if he had gone to call Udailal Mistri leving the engine open, he would not be expected to attach so much importance to fact that the engine was lying open which should first be set right before informing Shankarlal or any other person about such a serious incident which had been witnessed by him. Now, if he had gone to call Udailal Mistri leving the engine open, he would not be expected to attach so much importance to fact that the engine was lying open which should first be set right before informing Shankarlal or any other person about such a serious incident which had been witnessed by him. He admits that for 2 to 3 hours he did not inform anybody of this incident in the village. 8. Fateh Singh states that he had gone to Mehgtiya in order to call Mistri Udairam This Udairam has been produced by the defence and he states that Fateh Singh had not come to him on that date. Not only this he also states that he did not know Fateh Singh at all and nobody by the name of Fateh Singh had ever come to call him for getting his engine repaired. Therefore, the very purpose for which Fatehsingh is alleged to have gone to Mehgtiya or return from where he is alleged to have seen this incident is negatived and his presence at the spot becomes doubtful. 9. Fateh Singh claims that he knew the accused by name even before this incident and the reason for this, put forward by him is that when the Sadhu Mandli was staying in the village (for a day only) then the persons staying near the temple and who had an elephant with them, used to call him by the name Kishore and had asked him to get leaves from the trees for the elephant and it was on that account that he came to know the name of the accused. How ever, on cross-examination he admits that he did not know the name of any other Sadhu in that Mandli. He also does not know the names of the Sadhu who had called out Kishore Chand he further pleaded his ignorance to the fact whether the Sadhu called their associate by name. It further appears that as a matter of fact, before the police he had admitted that he did not know the name of the accused or the deceased before the Police had already arrived at the spot. It further appears that as a matter of fact, before the police he had admitted that he did not know the name of the accused or the deceased before the Police had already arrived at the spot. In portion 'C' to 'D' of his police statement Ex D 1, he had not named the deceased or the accused and had only stated that he had seen one person lying in the Bawari and another person, who was holding an axe in his hand, was coming out of the Bawari. Further, in portion 'g' to 'h' he had stated that it was correct that it was only after the arrival of the Police that he came to know that Mahatma Kishore had killed Bhandari. He admits to have stated so in portion 'g' to 'h' when confronted with it. 10. As already stated above, in the Police he had stated that he did not know the name of the accused from before this incident till the accused was not put for identification by this witness during the course of the investigations and it cannot be said without any amount of doubt that Fateh Singh knew the accused either by face or by name before this incident. 11. According to Fateh Singh, he had informed Shankar Lal Teli about the fact that he had seen Bhandari lying in the well and Kishore running with an axe in his hand out of the Bawari. Shankarlal (PW 4) also admits that Fateh Singh had informed him of this incident at about 10 00 a.m. Thus Shankarlal was present when the site was inspected and the inquest memo of the deceased was prepared as also at the time when Mala and Towel of the deceased were recovered. These memos are Ex.P 2, P. 5 and they were prepared between 12.00 and 1.00 pm. If Fateh Singh had really seen what be states to have seen and bad informed Shankarlal would certainly have stated about Fateh Singh having seen this incident before the Investigating Officer and Police would certainly have, at that very time, examined Fateh Singh but this was not done. It was only after the discovery of the injury on the person of the deceased that the case was registered as an offence under Section 302 Indian Penal Code at about 2.00 p.m. 12. It was only after the discovery of the injury on the person of the deceased that the case was registered as an offence under Section 302 Indian Penal Code at about 2.00 p.m. 12. Thus, Fateh Singh appears to be false witness and as already stated above his conduct does not inspire confidence. Therefore, no reliance can be placed on his statement. 13. So far as the recovery of the watch and Bandi of the deceased from the person of the accused are concerned, it may at once be stated that this recovery does not at all appeal to us. Shri Sangram Singh (PW 16) states that Kishore had been taken into custody by Head Constable Fateh Singh and he had brought him to the Police Station and his formal arrest was made vide Ex. P. 12. Now this Fateh Singh, Head Constable has not been produced to show where he had found the accused Kishore and whether he was, even at that time, wearing the watch and the Bandi which are said to have been recovered from him. The possibility that Kishore may have been made to wear the Bandi and watch of the deceased after he had already been taken into custody by Fateh Singh cannot be ruled out. Otherwise, also it appears to be wholly unnatural that Kishore would have roamed about wearing the watch and the Bandi of the deceased openly so that he could be spotted as the murderer of Bhandari. Not only this, the statement of Jagdish (PW 7) goes to show that deceased Bhandari bad at one time given the watch to Jagdish for being worn by him. In thse circumstances, the possibility that the watch and the Bandi may have been handed over to Kishore, by the deceased himself, cannot be ruled out. This circumstance by itself cannot connect the accused with the crime. 14. So far as the recovery of the axe is concerned it does not appear to be of any help to the prosecution because in the first place it has not been shown to be stained with human blood. In the secord place the axe is said to be recovered from an open field which was not in possession of the accused and this recovery has been made after considerable time. -The incident had taken place on 11-12-1981 whereas the accused was arrested on 21-12-1981. In the secord place the axe is said to be recovered from an open field which was not in possession of the accused and this recovery has been made after considerable time. -The incident had taken place on 11-12-1981 whereas the accused was arrested on 21-12-1981. In pursuance of the information given by the accused on 2212-1981 the recovery of the axe was made on 24-12-1981 and the place from where the recovery of the axe was made was a field called 'Moriwala' belonging to one Hira Lal Brahmin, resident of Bijnol. The axe was said to be lying hidden under the dry leaves of the sugarcane. This place was such as should not be said to be in exclusive possession of the accused and when human blood was not proved to be present on the axe, such a recovery loses all its significance. 15. Now, we are left with the evidence of Jagdish PW 7 which is sought to be relied upon by the prosecution to establish that the deceased was last seen in the corrpany of the accused. We have carefully perused the statement of Jagdish PW 7 and we are clearly of the opinion that this witness does not appear to be a reliable witness at all. In the statement before the Court, this witness says that Kishore and Bhandari had left for the Bawari together at about 5 00 a.m. He further states that at that time Bhandari had a sum of Rs. 1,100/- (Eleven hundred rupees) with him and he had told Bhandari to leave that amount with him but Bhandari did not do so and carried the amount with him. He then, states that he waited for Bhandari and Kishore to return for about two nous and when they did not return, he went in search of them and it was then that he found Bhandari lying dead in the Bawari and Kishore was missing. He also states that the sum of Rs. 1100/- a watch and the Bandi of the deceased were also missing. Having seen all this, he states to have gone to Gamer Lal, Sarpanch and on the information given by him, Gamerlal had gone to the Police Station to lodge the report. He also states that the sum of Rs. 1100/- a watch and the Bandi of the deceased were also missing. Having seen all this, he states to have gone to Gamer Lal, Sarpanch and on the information given by him, Gamerlal had gone to the Police Station to lodge the report. One should have expected that all these facts must have found placed in the First Information Report lodged by Gamer Lal on the information given to him by Jagdish. But strangely enough there is absolutely no reference to any of these important circumstances, namely, that Bhandari had gone to Bawari along with Kishore, that Bhandari was carrying a sum of Rs. 1,100/-, that on search Kishore was found missing so also the fact that the wrist watch and Bandi of the deceased Bhandari were also missing. In the FIR (Ex.P 1) all that has been stated is that: at about 6.00 a.m. a Sadhu had died in 'Paniyara Kooan' in Bijnol. If, in fact, Jagdish had given information to Gamerlal, Gamerlal would certainly had incorporated this in his report Ex.P1. The absence of these details in FIR (Ex P 1) gives rise to an inference that as a matter of fact Jagdish had not given these details to Gamer Lal. Gamer Lal PW 2 only states that Jagdish had come to him crying at about 9.00 am. that Bhandari Sadhu died in the well. He does not state that Jagdish had given him the above details. It may also be noted that the site inspection Note (Ex.P 2) was prepared by the Police at about 11.00 a.m. in the presence Jagdish and Jagdish was a Motbir to it and it stands admitted by him. In the same way Jagdish was also present when the Inquest Report was prepared at about 1.00 a.m. and then the dead body was handed over for post mortem examination. At no stage Jagdish had stated before the Police before his statement was recorded that deceased Bhandari was carrying a sum of Rs. 1,100/-with him and that he was wearing a watch or that the watch, Bandi and the sum of Rs. 1,100/- were missing. In the post mortem report, Dr. Magh Kumar Sirohai has stated that the information given to him by the Police was that a Sadhu had died due to drowning. 1,100/-with him and that he was wearing a watch or that the watch, Bandi and the sum of Rs. 1,100/- were missing. In the post mortem report, Dr. Magh Kumar Sirohai has stated that the information given to him by the Police was that a Sadhu had died due to drowning. Then post mortem examination was carried out at about 1.00 p.m. Therefore, it appears that till 1.00 p.m. the matter was being taken to be a mere accident of drowning and Jagdish had not come out with the story that Kishore had accompanied deceased Bhandari and had filed away with the sum of Rs. 1,100/ , watch and the Bandi of the deceased. How ever, then on post-mortem examination, as also at the time of the preparation of the inquest memo it was found that the deceased had an incised wound on his scapular region, thus, that he had been murdered by Kishore appears to have been made out and thereafter Fateh Singh (PW 1) was put forward as an eye-witness. Thereafter, Kishore was got arrested and aforesaid recoveries are alleged to have been made from him. 16. Even if for the shake of argument Jagdish is believed to the extent that in the morning deceased Bhandari and the accused had left for the Bawari and were, thus, last seen together, this circumstance by itself is of no avail to the prosecution, in as much as the accused and the deceased Bhandari belonged to the some Jammat and their leading, for both together was an ordinary routine thing and on that circumstance alone, one cannot jump to the conclusion that it was accused Kishore who has inflicted injury on the scapula of Bhandari which later resulted into the death. The sum of Rs. 1100/-which according to Jagdish was on the person of the deceased has not been recovered from the accused nor it has been established that the accused had spent that amount in purchasing certain goods etc. or spent otherwise. The recovery of the watch and the Bandi as stated above, are not free-from doubt and therefore, on the basis of the single circumstance that the accused and the deceased has been last seen together, the charge under Section 302 Indian Penal Code against the accused cannot be said to have been brought home. The eye witness Fateh Singh, as already stated above is not at all reliable. The eye witness Fateh Singh, as already stated above is not at all reliable. The circumstances relied upon by the prosecution in the first place are not clearly established and the chain of the circumstances also does not appear to be complete. On the basis of such evidence, the conviction of the appellant cannot be maintained. 17. The result, therefore, is that this appeal is accepted. The conviction of the appellant under Section 302 Indian Penal Code and the sentence passed against him by the learned dditional Sessions Judge, Rajasthan are set aside. He is acquitted of the charges. He is in custody and shall be released forth with, , if not required in any other case.Appeal Accepted. *******