JUDGMENT 1. - The prosecution story as disclosed in the First Information Report lodged by Ramjas (PW 1) goes to show that his son Bhagwana who was separate from him had taken the field of one Bhag Chand for cultivation. Accused Gopal Ram used to work as a siri with Bhagwana Ram. On the evening of 20th of October, 1981 when Ramjas was sitting in his own field on a cot, accused Gopal Ram passed by him at about 8 P.M. Ramjas inquired from him as to where he was going and on that Gopal Ram told him that he was going to the field for keeping a watch and that Bhagwanaram would be following him. Ram Jas also asked Gopal as to why on that particular night he was going to the field when usually he does not do so. But Gopal Ram did not answer him. By that time Bhagwana Ram also reached there and told his father that as Gopal kam used to fear, he was also going with him to the field. Saying so Gopal Ram went towards the field and Bhagwana followed him. The next morning at about 8 AM Bhagwan Ram's son Satpal came to Ramjas and informed him that his father Bhagwana kam had not returned from the field. Thereupon he (Satpal) went to Bhagchand's field where he found that Bhagwana Ram was lying dead on a cot which was smeared with blood. Bhagwana Ram could not speak. Getting this information from Satpal Ramjas along with Omprakash, Hanuman and Satram went to that field and found Bhagwana lying on a cot with an injury on his head and on the finger of the right hand. He was already dead and much blood had already oozed. They also found that a Kassi was lying towards the head of the cot and it appeared to be stained with human blood. On seeing this they were of the opinion that somebody had killed Bhagwanaram in the night. It was further mentioned in report that thereupon they went to the house of Gopal Ram but he was not found there and since he had gone to the field with Bhagwana Ram in the night, they suspected that Gopal Ram may have killed Bhagwana Ram. This report was lodged at Police Station Muklawa at about 8.5 AM. It was further mentioned in report that thereupon they went to the house of Gopal Ram but he was not found there and since he had gone to the field with Bhagwana Ram in the night, they suspected that Gopal Ram may have killed Bhagwana Ram. This report was lodged at Police Station Muklawa at about 8.5 AM. On receiving this report PW 17 Abdul Aziz readied the spot, inspected the site and prepared the site plan (Ex. P. 4) along with the Site Inspection Note. Ex. P. 31. He also prepared Panchnama of the dead body of Bhagwana Ram vide Ex. P. 2. He took the kassi lying on the spot in his possession vide Ex. P. 5. He also took in his possession the Shirt and the `Chader,' from the body of the Bhagwana Ram vide Ex. P. 6. Blood stained cot was also taken by the Investigating Officer vide Ex P. 7 from the spot. Bhagwanaram's shoes were also recovered from the spot vide Ex. P. 8 A quilt was also recovered from there vide Ex P. 9. A wrist watch was also recovered vide Ex. P. 10. He also took in his possession a cot and quilt as also the mattress vide Ex. P. 12 and P. 13. He also took the moulds of the foot prints as also two shoe prints vide Ex. P. 3. Photograph of the dead body were also taken by Photographer Surenderkumar (PW 12). The dead body was examined by Dr. Mohd. Parvez (PW 7) at the site. He found as under : 1. Incised wound 25cm. x 4 cm. x 6cm. extending from left mastoid process left ear upto midline in frontal region. 2. Incised wound 8 cm. x 2 cm. x 4 cm. extending from left eye brow transvarsally. 3. Incised wound 2cm/21/2cm on right little finger. 4. Left eye was completely destroyed All these injuries were caused by sharp weapon. Right eve's pupil was dilated and was fixed.Cranium and spinal cord: There was fracture of frontal and left temporal bone. Duna matter of frontal and temporal lobe was torn. Parietal and temporal lobes were lacerated and crushed. THORAX :Walls, ribs and cartilages were normal. Plurae, larynx and Trashes were normal. Right lung and left lung were congested; Pericardium was normal. Heart was normal and both chambers were empty. Large vessels were normal.ABDOMEN:Walls and Peritoneum were normal. Duna matter of frontal and temporal lobe was torn. Parietal and temporal lobes were lacerated and crushed. THORAX :Walls, ribs and cartilages were normal. Plurae, larynx and Trashes were normal. Right lung and left lung were congested; Pericardium was normal. Heart was normal and both chambers were empty. Large vessels were normal.ABDOMEN:Walls and Peritoneum were normal. Mouth, pharynx and ossaohagus were normal. Stomach contained clotted blood but there was no food article. Small intestines, large intestines and their contents were normal. Liver was congested. Splean and kidney were normal. Bladder was normal and was full of urine. Organs of generation were normal.MUSCLES, BONES AND JOINTS:There was fractured dislocation of middle phalanx of right little finger. 2. In his opinion the cause of death was injury to brain tissue of frontal and temporal lobs and cerebral laceration. He prepared post mortem Report Ex. 14. According to him the injuries could have been caused by two sharp weapons. 3. The accused Gopal was arrested on 21-10-1981 by PW 20, Jagdish Prasad, who was accompanied by Kishan Lal PW 13 at Vijaynagar Vide Ex. P. 29, He recovered the shoes worn by the accused at that time vide Ex P. 30. On 20-10-1981, accused Gopal is said to have given information regarding a Shirt to Abdul Aziz vide Ex.P 32 and he got that shirt recovered from an earthen pot lying in KOTHA in his residential houses. Shri Abdul Aziz took that shirt in his possession vide Ex P. 33. According to him there were some stains of blood on that shirt. He also prepared a plan of the place from where the shirt was recovered vide Ex. P. 34. 4. On 19-11-1981 the moulds of the shoes of the accused were taken in presence of Shri Gurcharan Singh, S.D.M., Raysingnagar, (PW 21) vide Ex. P. 35. 5. After completion of the investigations a challan was put up against the accused and he was committed to the Court of the learned Addl. Sessions Judge, Raysingnagar. Charge under section 302 IPC was framed against him. He pleaded not guilty. Thereupon the prosecution examined 21 witnesses in all and produced 38 documents. In his statement under Section 313 Criminal Procedure Code the accused Gopal maintained his denial and pleaded alibi. He produced one witness Shera Ram in his defence. Sessions Judge, Raysingnagar. Charge under section 302 IPC was framed against him. He pleaded not guilty. Thereupon the prosecution examined 21 witnesses in all and produced 38 documents. In his statement under Section 313 Criminal Procedure Code the accused Gopal maintained his denial and pleaded alibi. He produced one witness Shera Ram in his defence. After hearing the learned Public Prosecutor and the counsel for the accused and perusing the record, the learned Addl. Sessions Judge, Raysingnagar convicted the appellant under Section 302 IPA and sentenced him to imprisonment for life and a fine of Rs. 1000/- In default three years rigorous imprisonment by his judement dated 25-6-1983. Aggrieved of this the appellant has filed this appeal through jail. 6. We have heard the learned amicus curiae and the learned Public Prosecutor and have carefully perused the record. It is urged by the learned amicus curiae that the offence against the accused had not been established beyond reasonable doubt. The learned Addl. Sessions Judge was not justified in convicting and sentencing him only on the basis of conjectures. According to him the evidence regarding the accused being last seen with the deceased is not by itself sufficient to connect the accused with the crime and the other circumstances alleged against the accused are not at all established. The learned Public Prosecutor has, however, supported the findings of the learned Additional Sessions Judge. 7. We have carefully considered the contentions of both the sides. The learned Additional Sessions Judge appears to have relied upon four types of evidence against the accused in order to convict him, namely: 1. The circumstance that he was last seen with the deceased. 2. The recovery of a Kassi from the spot. 3. The recovery of the blood-stained Shirt of the accused. 4. Similarly of the prints of the Boots of the accused with the prints found at the spot. 8. There is no direct evidence against the accused and the cases hinges only on the circumstantial evidence. We have to consider whether the circumstances relied upon by the learned Addl. Sessions Judge are sufficient to bring home the guilt to the accused beyond any reasonable doubt. 9. It is not disputed before us that Bhagwana Ram had died on account of the injury sustained by him on the night between 20 and 21st October, 1981, as has been found by Dr. Mond. Parvez (PW 7). Sessions Judge are sufficient to bring home the guilt to the accused beyond any reasonable doubt. 9. It is not disputed before us that Bhagwana Ram had died on account of the injury sustained by him on the night between 20 and 21st October, 1981, as has been found by Dr. Mond. Parvez (PW 7). It is also not disputed before us that the accused Gopal was a siri of the deceased Bhagwana Ram, who had taken the field of Bhagchand for cultivation and the dead body of Bhagwanaram was found lying in that field. 10. Having considered the contentions raised before us and the material on record, we are of the opinion that the circumstances of the recovery of the Kassi, recovery of the Shirt and the moulds of the shoe prints are of no avail to the prosecution and the learned Addl. Sessions Judge, does not appear to be correct when he has relied upon these circumstances in order to convict the accused along with the circumstance that the accused was last seen in the company of the deceased. The Kassi was lying at the spot itself and on examination by the serologist, no human blood was found on it. As the spots were disintegrated and its origins could not be determined. PW 14 Fatta Ram admits that he is an owner of that Kassi. He, however, says that accused had borrowed that Kassi from him on the day previous to the day when the dead body of Bhagwanaram was found and when this Kassi was, thus, borrowed, Bhagwanaram was also with the accused. The purpose of taking the Kassi stated by Gopal Ram was to clear the Ground. Since, the blood stains on the Kassi have not been proved to be of human blood, it cannot be said that this Kassi was used for commission of the crime of murder of Bhagwanaram. It is also not stated by Doctor Mohd. Pervez that the injuries found on the person of the deceased Bhagwanaram could have been caused by this Kassi. All that he states is that this injury could have been caused by a sharp-edged weapon and in his cross-examination he does not rule out the possibility of more than one weapon being used. We have ourselves seen the Kassi. The blade of that Kassi does not appear to be so sharp as to have caused incised wounds. All that he states is that this injury could have been caused by a sharp-edged weapon and in his cross-examination he does not rule out the possibility of more than one weapon being used. We have ourselves seen the Kassi. The blade of that Kassi does not appear to be so sharp as to have caused incised wounds. In these circumstances we are clearly of the opinion that the recovery of this Kassi is not of much importance. 11. So for as the recovery of the Shirt is concerned it may be stated that the incident is alleged to have taken place on the night between 20th and 71st of Oct, 1981. The accused was arrested on 25-10-1981 at Vijaynagar and on 29th of October, 1981 he is alleged to have given information regarding this shirt and got it recovered from his own house in village Muklawa. The case of the prosecution itself is that the accused was missing from his house at Muklawa from the very night of the incident. Now it is difficult to conceive that after having disappeared from the house on the night between 20th & 21st October, 81 he would have had on opportunity to conceal the shirt presumed to have been worn by him at the time of this incident, in his own house in an earthen pot. The police was consistently in search of this accused it he had come to his house between 21-10-81 and 25-10-1981, he would certainly have been noticed by the police or by the villagers and would have been apprehended. Not only this, if the accused was conscious of the presence of the blood stains on his shirt and wanted to conceal the same in order to escape the punishment, he had ample opportunity to wash that shirt or destroy it altogether and he could not have been expected to have concealed it in his own house so that it could easily be found out. The matter does not rest here. According to the recovery memo Ex. P. 33. There were only a few stains/drop lets of the blood on three parts of the shirt. Such marks on the clothes of an Agriculturist are not uncommon and the mere presence of such stains or marks cannot necessarily show that he was involved in a crime. The matter does not rest here. According to the recovery memo Ex. P. 33. There were only a few stains/drop lets of the blood on three parts of the shirt. Such marks on the clothes of an Agriculturist are not uncommon and the mere presence of such stains or marks cannot necessarily show that he was involved in a crime. Not only this, as already stated above, the accused was arrested on 25th of October and the recovery is said to have been made on 29th of October, 1981. The house and the Kotha from which the Shirt is said to have been recovered is not said to have been under the lock and key of the accused. In these circumstances the planting of the shirt also cannot be ruled out. Except the mere fact that the shirt was recovered at the instance of the accused there is no evidence to show that is this shirt belongs to him or that he was wearing this shirt on that evening. Looking to all these circumstances, we do not attach any importance to the recovery of this shirt. It will not be out of place here to mention that the fact, as to when this shirt reached the Chemical Examiner, is also not free from doubt. The report Ex. P 37, in column No. 2, date of receipt mentions receipt No. 7383 dated 21-10-1988 and then a further date which is not legible. Now, it will also be interesting to note that in the tabular form where the numbers of the parcels are mentioned the item No. `G' wherein Kamij have been listed, also appears to be overwritten. The other marks are typed whereas this (G) is in hand over some typed written letter. This interpolation in the date and the marks in Ex. P. 37, further confounded by the statement of PW 6, Prabhat Ram. He states that on 21-10-81 SHO Shri Abdul Aziz had deposited 10 packets i.e. 10 Items in the Malkhana, out of which three packets were in sealed condition. Then on 25-10-1981 one more sealed packet was deposited. Again on 29-10.81 when another sealed picket was deposited and on 19-1-1981 the SHO deposited four moulds. He further, states that on 1-11-1981, which he later corrects as 1-12-1981, 10 Items including the four moulds were sent to the Chemical Examiner, Jaipur. Then on 25-10-1981 one more sealed packet was deposited. Again on 29-10.81 when another sealed picket was deposited and on 19-1-1981 the SHO deposited four moulds. He further, states that on 1-11-1981, which he later corrects as 1-12-1981, 10 Items including the four moulds were sent to the Chemical Examiner, Jaipur. In the Register, he admits that the date of deposit of the articles with the Chemical Examiner was initially mentioned as 3-12-1981 but was later corrected as 1-12-1981 Thus, the fact that the articles remained intact during the custody of the police till they reached the Chemical Examiner is also not free from doubt. 12. This brings us to the question of taking all the moulds of the shoe prints from the spot and there tallying with the shoe prints taken in presence of the Magistrate. It may at once be stated that Shri Prabhati Ram admits that the moulds received by him on 21-10-1981 as also on 19-11-1981 were not in sealed condition. If the moulds of the shoe prints were, thus, not sealed and were sent to the Finger Print Expert in such an unsealed condition, then there comparison is useless and the planting of the prints at the spot cannot be ruled out. In any case it is admitted that Gopal was siri of the Bhagwana Ram and used to go to the field then the presence of his foot prints or shoe prints would be naturally there and their presence by itself cannot be taken as an incrimination circumstance. 13. The only other piece of evidence now left is the circumstance of the accused being seen in the company of the deceased last. A careful examination of the evidence of the witnesses in this respect has brought to the conclusion that this evidence is also not free from doubt and is applicable on other hypothesis also. According to Geeta (PW 2) wife of the deceased, the deceased took his meal and thereafter left tor the field at about 8.00 P.M. alone, Gopal went a little earlier. Then according to PW 1, Ramjas father of the deceased on that evening at about 8.00 P.M., when he was sitting on his own field on a cot, Gopal passed by him towards the field of Bhagchand and he was followed by Bhagwana Ram. Then according to PW 1, Ramjas father of the deceased on that evening at about 8.00 P.M., when he was sitting on his own field on a cot, Gopal passed by him towards the field of Bhagchand and he was followed by Bhagwana Ram. He is a man of 75 years of age and admits that his eye sight is weak but he could recognise people by their voice and he also states that he had asked Gopal where he was going and on that he was told by Gopal that he was going to the field and that Bhagwana Ram was to follow him so according to this evidence also It was at about 8.00 P.M. that Gopal was going towards field ahead of Bhagwana Ram and Bhagwana Ram followed him. 14. Then PW 4, Omprakash brother of the deceased states that on that night Gopal left for the field and later Bhagwana Ram also left for it. So also is the statement of Pema Ram (PW 9), another brother of the deceased, the evidence of both the witnesses goes to show that at about 8 P.M. in the evening the Gopal tiad gone towards the field of Bhagchand followed by Bhagwana Ram. Whether he had reached the field or not is not borne out from the evidence of these witnesses. 15. It is Fatta Ram PW 14 who states that on that evening Bhagwana Ram & Gopal bad passed by his field and at that time Gopal had borrowed a Kassi for clearing the ground but that also was only near about 8.00 P.M. Then PW 5, Nauranglal says that his field is in the neighbourhood of Bhagchand's field and on that night at about 8.00 or 9.00 P.M., when he was driving wild animals then he called Bhagwana Ram in order to ascertain whether Gopat had come (It appears that the name of Naurang has wrongly been mentioned in this part of the statement). At that time he found that Gopal was also present with Bhagwana Ram. At that time he found that Gopal was also present with Bhagwana Ram. Thus, this also proves the fact the accused being last seen with the deceased up to about 8.00 or 9.00 P.M. Thereafter we find from the evidence of PW 3, Hanuman that at about mid-night someone passed by him and he heard the foot steps and called out as to who was there, whereupon that man gave out his name as Gopal. He further, states that he had passed quite nearby him and therefore, he also recognised him as Gopal-accused. The accused was carrying a bail under in his arm at that time and had gone towards the village. Thus, according to this witness, he had seen the accused near about the place of the incident at about mid-night but this statement of Hanuman does not appear to be convincing and reliable at all. According to him the next morning he had seen Ramjas and Omprakash going towards Bhagchand's field. He also accompanied them and there found Bhagwana Ram lying dead in a pool of blood and thereafter he accompanied Ramjas to the house of Gopal and not finding Gopal there, he further accompanied Ramjas to the police station, where the FIR was lodged and he is a signatory to that report. Yet he admits that neither at the spot nor at the time when he accompanied Ramjas to the house of Gopal nor even at the time when FIR was lodged, he had told Ramjas that he had seen Gopal in the night as now stated by him. If in fact he had seen Gopal in the night he would certainly have informed Ramjas about this, when he went to the field of Bhag Chand alongwith Ramjas, when they went in search of Gopal and in any case at the time the First Information Report was lodged. His keeping silence in respect of this very important circumstance all through goes to show that he has made up this circumstance later on and it cannot be believed that he have really seen Gopal on that night in the manner alleged by him. 16. Again if the statement of Hanuman in this respect is accepted it would be at about mid-night that Gopal was last seen near the spot. However, from the evidence of Dr. 16. Again if the statement of Hanuman in this respect is accepted it would be at about mid-night that Gopal was last seen near the spot. However, from the evidence of Dr. Mohd Parvez (PW 7) it appears that the incident must have taken place much after midnight, i.e. in the small hours of the day. Although he does not specifically state the time of murder but he states that the stomach of the deceased was empty and the bladder was full of urine. He further admits that the stomach becomes empty after about 6 hours of the taking of the food and the bladder is generally full early in the morning. According to PW 2, Smt. Geeta, wife of the Bhagwana Ram, Bhagwana Ram had taken his rood a little before he left for the field at About 8.00 P.M. and this also gets support from the evidence of Ramjas and, Omprakash etc. Therefore, he must have taken his food a little before 8.00 P.M. and the stomach must have been empty it about 2.00 A.M. and when his bladder was also found full of urine, the time of that must have been much later than 2.00 A M. say near about 4.00 or 5.00 A.M. Therefore looking to this circumstance also the evidence of Hanuman does not inspire confidence. 17. Thus, from the evidence all that we have is that accused has left for the field a little ahead of the deceased Bhagwana Ram at about 8.00 P.M. on 20th of October, 1981 and may have reached the field near about that time but what happened thereafter is not at all known and it cannot be said for certain that the accused remained in the company of the deceased till midnight or even later till his death occurred. The circumstance that the accused had left for the field or had reached the field of Bhagchand alongwith the deceased at about 8.00 P.M. or 9.00 P.M. may therefore, only raise a strong suspicion against the accused. But suspicion, however, strong cannot take the place of proof. It cannot be ruled out that after 9.00 P M accused may have left place and some one may have caused injuries of the person of Bhagawana Ram resulting into his death. This possibility becomes of the created significance in view of the evidence of Dr. Mohd. But suspicion, however, strong cannot take the place of proof. It cannot be ruled out that after 9.00 P M accused may have left place and some one may have caused injuries of the person of Bhagawana Ram resulting into his death. This possibility becomes of the created significance in view of the evidence of Dr. Mohd. Parvez that the injuries found on the person of the decease could be possibly by two sharp weapons. Although in the later part of the statement he has also stated that they could be possibly by a single instrument also. 18. In the FIR suspicion has been cast against Gopal and it Is also in the prosecution evidence that before coming to the police station the witnesses specially PW 1 Ramjas and PW 3 Hanuman and PW 8 Patran had gone to the house of Gopal and come to know that he was missing from the house since the evening. In this respect PW 8. Patram states that from the spot they followed the foot prints to the house of Gopal but none of the other witnesses say so. These foot prints were not preserved nor the moulds were taken. Therefore, story that the witnesses had gone to the house of the Gopal before coming to the Police Station also cannot be said to be free from the doubt. It may also be stated that according to Ramjas it was in the morning that when Bhagwararam did not come home, he sent his grandson Satpal to the field of Beagchand to find out why Bhagwana had not come. PW 2, Smt. Geeta on the other hand states that when Bhagwana Ram did not return in the morn, she sent her son Stapal to the field and when Satpal returned and told her that Bagwanaram was lying dead in the field. She asked Satpal to go and inform his grandfather i.e. Ramjas. Therefore, there is a sharp contradiction between those two statements of Ramjas & Geeta Ramjas says that he had sent Satpal to find out why Bhagwana had not returned. Whereas according to Smt. Geeta it was she who had sent Satpal to find out what had happened to Bhagwana and after satpal returned from the field she sent him to Ramjas. Whereas according to Smt. Geeta it was she who had sent Satpal to find out what had happened to Bhagwana and after satpal returned from the field she sent him to Ramjas. Be that as it may in the morning according to Geeta late after the sunrise she had sent Satpal to the field. This must naturally have taken sufficient time for Satpal to go to the field, come back, inform his mother and then he informed his grandfather Kamjas who was living separate and in these circumstances if after reaching the field Ramjas and the other witnesses had gone to Gopal house in order to find out whether he was there or not, they could not have reached the police stati on at 8.35 A.M. to report the matter. According to the FIR it was between 8 and 8.15 A.M. that Satpal had informed Ramjas that Bhagwana Ram lying dead in the field. 19. Looking to all these circumstances, we are unable to hold that this evidence regarding the accused being last seen in the company of the deceased in sufficient to connect the accused with the crime of the murder of Bhagwana Ram was beyond reasonable doubt. 20. In case of circumstantial circumstance motive also plays important part. The prosecution evidence in this case does not indicate any convincing motive for the accused to have committed the murder of Bhagwana Ram. It has, of course, been tried to show that Bhagwana Ram had rebuked Gopal for not bringing fodder for the camel in the morning but such a thing may commonly happen between agriculturist and his siri and such a rebuke could not be a motive for Gopal to kill Bhagwana Ram. 21. Having regard to all these circumstances of the case we are unable to uphold the conviction of the Appellant. According to us he is entitled to the benefit of the doubt because the guilt has not been brought home to him beyond reasonable doubt. The result, therefore, is that this appeal is accepted. The conviction of the appellant under section 302 IPC and the sentence awarded to him are set aside. He is acquitted of this charge. He is in custody and shall be released forthwith if not required in any other case. 22. The result, therefore, is that this appeal is accepted. The conviction of the appellant under section 302 IPC and the sentence awarded to him are set aside. He is acquitted of this charge. He is in custody and shall be released forthwith if not required in any other case. 22. Before parting with this case it may be recorded that the learned Amicus curie has taken pains to prepare the case and assist us in arriving at the conclusion to which we have arrived at. 23. We are, therefore, thankful to him.Appeal accepted. *******