JUDGMENT 1. - This criminal appeal arises out of judgment of the learned Sessions Judge, Tonk holding the appellant guilty of the offence under Section 302, IPC, and sentencing him to undergo imprisonment for life. 2. On a written report (Ex. P. 6) lodged by Banjya (PW. 5) on 12.12.1986, a criminal case (F.I.R. No. 84/86) was registered at police station Duni (Tonk) for offence under Section 302, IPC. The report was lodged at 7.30 A.M. on 12.12.1986. In that report, it had been stated that on 12.12.86 at 6 A.M. in the morning, Banjya's wife told that she and her son, Ram Sahay, both, had gone to search their she-buffalow and when they went near well of Ramnarain, they asked the appellant for the whereabouts of their she-buffalo but the appellant instead of giving any information about she-buffalo, started abusing them; that even then informant's wife and son did not show any resentment bus, the appellant suddenly brunted by an axe on Banjya's wife, who escaped herself from blow by stepping back thereby the brunt did not lay on her person; and that, the appellant thereafter landed second brunt which hit head of the informant's son, thereby his son sustained injuries and died on the spot. According to the F.I.R. the informant's wife then came to him and narrated the incident and said that dead body of their son laid in the field of Prahlad appellant). It had also been alleged in the report that, on the day of incident, Ramsahay (informant's son) woken up early in the morning and went to graze their she-buffalo but it was not found and thereafter, his son and wife went in its search. 3. The appellant was arrested on 12.12.1986. After completion of the investigation, challan was submitted. Learned trial Court framed charge of Section 302, IPC, against the appellant who denied the charge and claimed to be tried. In all 13 witnesses have been examined to fortify the allegation of charge. The appellant was examined under Section 313, Cr.P.C. and he produced Lala in his defence as DW l. After hearing the parties, learned trial court passed the judgment convicting and sentencing the appellant, as stated in first para of this judgment. Hence this appeal. 4. We have heard the learned counsel for both the parties. 5. The appellant was examined under Section 313, Cr.P.C. and he produced Lala in his defence as DW l. After hearing the parties, learned trial court passed the judgment convicting and sentencing the appellant, as stated in first para of this judgment. Hence this appeal. 4. We have heard the learned counsel for both the parties. 5. First contention on behalf of the appellant is that the trial court committed serious illegality in placing reliance on the testimony of Mst. Baniyani (PW 4). In this regard, Shri Jain learned counsel for the appellant urged that as per the version given out by Mst. Baniyani (PW 4), the injuries on the person of the deceased are alleged to have been caused by an axe but, the said version is contradictory to the version given out by the medical jurist who conducted autopsy on the body of the deceased ; and according to the autopsy report, nature of the injuries on the person of the deceased has been assigned to be lacerated wounds which are said to have been caused by blunt object. In these circumstances, according to Shri Jain, the testimony of Smt. Baniyani (PW 4) being discrepant to the medical evidence, was not of sterling worth and could not be relied upon by the trial court. 6. Next plank of contention on behalf of the appellant is that Smt. Baniyani (PW 4) admitted in her statement that her clothe were strained with blood as she had put and lathis head on her lap after infliction of the injuries by the accused thereby her clothes were soaked with blood. Taking the aid of the above said facts, learned counsel for the appellant contended that the presence of blood on the clothes of Mst. Baniyani (PW 4) would have been a good circumstances to show that she was present at the spot but, those clothes alleged soaked with blood were net handed over to the police during investigation and the explanation put forward by Smt. Baniyani (PW 4) is not probale that after incident, she was having blood stained clothes. This part of her statement has not been corroborated by Banjya (PW-5) father of the deceased who, deposed that blood stained cloth of her wife was shown to the police during investigation. 7. Third most important and crucial contention on behalf of the appellant is that as per evidence of Dr. This part of her statement has not been corroborated by Banjya (PW-5) father of the deceased who, deposed that blood stained cloth of her wife was shown to the police during investigation. 7. Third most important and crucial contention on behalf of the appellant is that as per evidence of Dr. Chandramohan Maheshwari (PW12), some undigested food was found in the stomach of the deceased at the time of post mortem examination which according to the learned counsel shows that the deceased might have taken meals 2-3 hours before his death; and further that as per the evidence of Shri Banjya (PW 5) the deceased have taken meals at about 7 or 8 O' clock as such he might have died at about 10 O'clock whereas the incident is alleged to have taken place at about 6 A.M. and the death is said to have occurred at about 6 A.M. Placing reliance upon these circumstances wrung out from the evidence on record, learned counsel for the appellant vociforcely urged that in view of the evidence of Dr. C.M. Maheshwari (PW 12), the death of Ram Sahay took place at 10 P.M. and the story given out by Smt. Baniyani (PW 4) becomes absolutely false much less it shows that she was not an eye witness of the incident; and that apart, the prosecution case becomes doubtful because there was no occasion for the appellant to have inflicted any injury either on the person of Smt. Baniyani (PW 4) or the deceased neither there has been allegedly any enmity nor any damage to the crop of the accused has been alleged by the prosecution, inasmuch as according, to Shri Jain learned Advocate for the appellant, presence of the accused-appellant at the scene of occurrence was innocent evidently from the statement of Smt. Baniyani (PW 4) who has not clarified as to whether the appellant was sleeping at the relevant time or where was he; and such an explanation, it is urged, was necessary because the incident is said to have taken place in the month of December having a spell of cold and the appellant might have been sleeping under a thatched shed; so, the prosecution could have explained as to shed was closed or opened; and that apart, at the time of incident, it was not expected that the people would not have woken up at 6 O' clock in the morning. 8. Alternatively, Shri Jain further urged that if the evidence of Smt. Banyani (PW 4) is believed, still a question arises as to whether the appellant had intended to commit murder of the deceased because, admittedly the appellant inflicted only one blow on the person of the decease and, therefore, in these circumstances, the appellant cannot be convicted under Section 302, IPC and the conviction in either case is possible only under Section 304, Part II, IPC. 9. Contrarily, learned Public Prosecutor contended that the presence of Smt. Baniyani (PW 4) at the scene of occurrence was natural and there was nothing on record to disbelieve her statement being natural version and that apart, looking to the nature of the injuries it can safely be observed that the appellant inflicted injury with intention to commit murder of Ram Sahay. 10. 10. Having considered the points raised by both the parties and perused the entire record, we are of the opinion that looking to the submissions made by the parties, it is admitted position that Smt. Baniyani (PW 4) was the only eye witness of the occurrence; she is mother of the deceased, and could be interested witness but neither prosecution nor the accused have alleged any enmity, and, therefore, if the presence of Smt. Baniyani (PW 4) is established then the evidence of Smt. Baniyani (PW 4) cannot be disbelieved merely on the ground of her being mother of the deceased because, being mother she would not have made any attempt to implicate an innocent person leaving real culprit freed. Confrontedly, now it is to be seen as to whether Smt. Baniyani (PW 4) was varily present at the scene of incident and was she eye witness and if so, whether her statement has been supported by any other circumstances brought on record by the prosecution. But, for that purpose, we will have to examine the evidence first. 11. Prabhulal (PW 1) stated that on l2.12.86 at about 6/7 a.m. he got an information that a dead body was lying near well of Narain Mali; so he went to the scene of occurrence and there found son of Banjya lying dead having injury on his head. He also deposed that the police came at the scene of occurrence and in request report (Ex.P.l) was prepared which has been attested by him. His testimony makes it clear that when the witness reached, the dead body was lying near well of Narain duly unattended and further shows that possibility of reaching of a person at the scene of occurrence cannot be ruled out. Thus, the conduct of mother of the deceased (viz. Mst. Baniyani (PW 4) in leaving her son's dead body unattended appeals to be quite unnatural. Further, this much is clear from PW 1 is prosecution version that till he reached the scene of occurrence and arrival of police there, he (PW 1) did not come to know as to who inflicted injury on the person of the deceased and that apart, he nowhere claimed that after arrival of the police he came to know that the injury on the person of the deceased had been inflicted by the appellant. At the time when the inquest report was prepared, the first informant was also present at the scene of occurrence. In this circumstances, non-mention of the name of appellant by Prabhulal (PW 1) creats doubt in prosecution story inasmuch as from the version given out by him in his statement (PW 1) it can safely be said that till the inquest report was prepared, it was not known to him (PW 1) so also the investigating agency as to who was the real culprit otherwise, Prabhulal (PW 1) would have also knowledge about red culprit; and only by interpolation, name of the accused-appellant has been fabricated. Chanda (PW 2) is also attesting witness of inquest report (Ex.P.l) and seizure memo of bloodstained earth and sample (Ex.P.5) but he also did not state that name of the appellant was given out as peccant. Therefore, his statement (PW 2's) can also be excluded from consideration as to the culpability against the appellant. Lalchand (PW 3) is also attesting witness of site plan (Ex.P.3) and he also did not implicate the appellant in any manner. 12. Smt. Baniyani (PW 4) deposed that on the day of incident at about 6 a.m. her son, Ramsahay (deceased) woke up and went to make water; then she asked him to graze their she buffalo but he replied of having no she-buffalow there; therefore, she told her son that buffalo might cause damage to the crop of someone and that being so, they should go in search of it and reached at the well of Ramnarain where the accused appellant was sleeping on a cot; and both of them asked him about their she-buff lo but Prahalad blurted with abusive language to her (PW 4) against which, Ramsahay is said to have resisted thereby Prahlad is said to have tried to inflict a blow on her person (PW 4) with an axe so she escaped herself from axe brunt. Thereafter, Smt. Baniyani (PW 4) deposed that Prahlad inflicted blow on the head of the deceased which resulted in sustaining injuries apart from oozing blood from Ramsahay's head and then she laid Ramsahay's injured head on her lap. She (PW 4) showed her inability to state as to whether the axe was landed with sharp side or reserved side. Thereafter, Smt. Baniyani (PW 4) deposed that Prahlad inflicted blow on the head of the deceased which resulted in sustaining injuries apart from oozing blood from Ramsahay's head and then she laid Ramsahay's injured head on her lap. She (PW 4) showed her inability to state as to whether the axe was landed with sharp side or reserved side. According to her statement, there after she (PW 4) called her husband who came there and who is said to have been sitting by the fireside to warm himself at the back of a house covered of straws; she narrated the incident to her husband who thereafter went to the police station to lodge report. In her cross-examination, she (PW 4) deposed that no damage was found to the crop when she reached the well of the accused who was sleeping; but immediately she further deposed that the accused was not sleeping and admitted that her clothes (Loogra & Kabja) were smeared with blood which were washed & given to female sweeper next day. She stated that she changed her clothes before the arrival of the police at the spot but the blood smeared clothes were seen by the police. According to her statement (PW 4's), she showed her inability to say as so whether Ramsahay took meal or not on the preceding evening. The witness denied the suggestion that her buffalo went away at about 10'O clock in the night and her son had gone to search she buffalo at that time; and further that it is wrong to say that she did go to search she buffalo with her son. 13. From the facts (ut supra) derived from statement of Smt. Baniyani (PW 4) it is crystal clear that at the relevant time, her husband was there at her house and was sitting by the fireside to warm himself behind his thatched house; that her clothes were smeared with blood. In these circumstances, it was just possible that in case she buffalo was to be searched out then husband of Smt. Baniyani (PW 4) could have gone to search and there was no necessity for this witness to have gone to search out her she-buffalo chasing her minor son early in the morning. In these circumstances, it was just possible that in case she buffalo was to be searched out then husband of Smt. Baniyani (PW 4) could have gone to search and there was no necessity for this witness to have gone to search out her she-buffalo chasing her minor son early in the morning. These circumstances casts speck on her testimony and the possibility of her presence at the scene of occurrence can be ruled out inasmuch as other circumstance which makes her statement doubtful is that when her clothes were smeared with blood and that too are said to have been seen by the police it is surprised that the police did not take those blood smeared clothes in its custody so as to establish the presence of the witness (PW 4) at the crucial time. It appears that blood stained clothes were not shown to the police otherwise the police would have taken those clothes in its custody. In our view, in effort to evade parry and hide some thing the witness indulged in equivocation. The explanation of the clothes having washed appears to be unreasonable. 14. The investigating officer nowhere in his statement deposed that he was shown blood stained clothes of Smt.Baniyani (Pw 4) or that he had seen those clothes. This makes it clear that the testimony of the witnesses (Pw 4 & Pw 5) about staining of cloths of Pw 4 with blood has not been supported by the prosecution this witnesses (Pw 4 & Pw 5) who are prone to exaggerate matters, have given false explanation because the investigating agency either failed to make those blood stained clothes of Pw 4 as piece of evidence, or to establish their presence at the scene of occurrence the witnesses in their anxeity to go whole to support the charge indulged in equivocation. Thus, non-availability of blood stained clothes of Pw 4 makes her own statement doubtful which too is not corroborated by the investigating agency. 15. Another curious feature which casts a speck is on the evidence of Pw 4 when she deposed that she prepared meals but she could not say as to whether her son took meal or not. Thus, non-availability of blood stained clothes of Pw 4 makes her own statement doubtful which too is not corroborated by the investigating agency. 15. Another curious feature which casts a speck is on the evidence of Pw 4 when she deposed that she prepared meals but she could not say as to whether her son took meal or not. In our opinion, the testimony of Smt. Baniyani (Pw 4) on the point of taking meals and non-seizure of the blood stained clothes is a sort of embellishment so as to rule out the infirmities, discussed above. The prosecution well aware of the fact that undigested food particles were found in the stomach of the deceased during autopsy on his person and that was the reason that Smt. Baniyani (Pw 4) has been asked to show ignorance about taking of meal by the deceased The evidence of Dr. C.M. Maheshwari (Pw 12) about availability of food particles in the stomach of the deceased makes the statement of Smt. Baniyani (Pw 4) as doubtful. 16. Baniva (Pw 5) - father of the deceased in his statement admitted that, at the time his son and wife went to search out their she-buffalo, he was sitting by the fireside so as to warm himself. The testimony given out by Smt. Baniyani (PW 4) is further belied by statement of Banjya (Pw 5) when he stated that at the time when his wife told him about the incident, Narain, Sorajya, Bajragi were also sitting with him by the fireside to warm themselves. But, none of these persons have come forward in order to corroborate the testimony of Smt. Baniyani (Pw 4) & Banjya (Pw 5). 17. Banjya (Pw 5) further deposed that firstly he had gone to police out post and there also he narrated the whole incident but none of the persons either from the police out-post or from the police statements, corroborated this fact. If Banjya (Pw 5) would have narrated the incident at the police out-post then definitely police out-post personnel could have entered the information of incident in police daily dairy (Roznamcha) but no such evidence is forth-coming. 18. Banjya (Pw 5) deposed that he was directed to lodge report at the police station by the police personnel present at the out-post and thereafter he got report written and submitted at the police station. 18. Banjya (Pw 5) deposed that he was directed to lodge report at the police station by the police personnel present at the out-post and thereafter he got report written and submitted at the police station. This part of his statement exposes hallucination and cannot be believed because, in a murder case, police personnel could not have refused to enter report or to direct the informant to get it lodged at the police station. 19. Banjya (PW 5) admitted in his cross-examination that Ramsahaya (deceased) took meals in the preceding evening and after taking meals he went to sleep at 8-9 p.m. From this version it is precise that the deceased took his meal at about 6-7 p.m. and thus, opinion given by Dr. C.M. Maheshwari (Pw 12) about presence of undigested food in the stomach appears to be correct. Moreover, the doctor has categorically stated that death of Ramsahay took place at about 10 P.M. and the deceased would have taken meal at about 7/8 p.m. Taking the aid of medical evidence (Pw 12's) it cannot be ruled out that the occurrence had taken place at about 10 p.m. because, semi digested food was found by the doctor who conducted au opsy on the person of the deceased, in the stomach of the deceased, during post mortem examination. It is thus clear that in case the deceased was alive upto 6 a.m. in the morning then it was not possible to have found undigested food particles in the stomach of the deceased, by the doctor (Pw 12). 20. Having benefited by the circumstances wrung out from the prosecution evidence (ut supra) in our opinion the incident appears to have taken place at about 10 P.M. This circumstance is sufficient to disbelieve the testimony of Smt. Baniyani inasmuch as what strikes one about this case is the apparent absurdity and the general vagueness of the story. 21. Reliance can be placed upon the decision in State of Punjab v. Joginder Singh ( AIR 1973 SC 1258 ) to fortify our view. In the cited decision, the Apex Court observed as under:- "Having due regard to the medical evidence, it is the view of the High Court that Gurdip Singh should have died about two or three hours after taking food because the doctor found eight ounces of semidigested food in his stomach. In the cited decision, the Apex Court observed as under:- "Having due regard to the medical evidence, it is the view of the High Court that Gurdip Singh should have died about two or three hours after taking food because the doctor found eight ounces of semidigested food in his stomach. This gives an indication that the murder must have taken place not at the time mentioned by the prosecution witnesses but long thereafter when probably there would have been nobody to witness the occurrence." The view of the High Court in the cited case was upheld by the Supreme Court. 22. In similar circumstances, in Riyadin v. State of Rajasthan (1985 RLW p. 589) the prosecution evidence was disbelieved on the time of incident and it had been observed by this Court that time given by the prosecution cannot be believed in view of the statement given by the doctor where he has found undigested food articles in the stomach of the deceased. 23. From what has been stated above, there can be gainsaying that the contention raised on behalf of the appellant that the injury is alleged to have been caused by sharp object whereas the injury found on the person of deceased is said by the doctor to have been caused by some blunt object which makes the prosecution as blatant lie, cannot be bizzare and barren of force, much less creates a reasonable doubt in our xenia regarding the complicity of the appellant. In a catena of decisions, this Court as well as the Apex Court observed that when a person makes an attempt to cause injury at some other person by sharp object then it shall be presumed that sharp side had been used unless eye witness claims or states that blunt side was used. 24. With this rule in mind, we may now grapple with the facts and evidence of the case at hand. As per evidence of Smt. Baniyani (PW 4), the accused appellant used axe in order to inflict injury on the person of deceased, Ramsahay but the injury on the person of deceased found is stated by the doctor, to be lacerated wound and that too, is opined to have been caused by blunt object. The investigating officer also made recovery of lathi. The investigating officer also made recovery of lathi. This circumstance calls for intrinsical examination on the question arose as to why lathi has been recovered at the information and instance of the accused appellant when the prosecution case was of inflication of blow with hatchet. From the recovery of lathi, it can therefore be inferred that after investigation, the investigating officer changed his opinion and he was satisfied that injury on the person of the deceased has been said to have caused by lathi though no such evidence is on record and thus, aforesaid adverse inference can be drawn against the prosecution. Even otherwise from the recovery memo it cannot be ruled out that the prosecution agency also during investigation was of the opinion that weapon of offence was lathi and that being so, there was no necessity of recovery of weapon which was not a weapon of offence in the eye of prosecution agency or eye witness for the prosecution. 25. Apparently, there was no enmity in between the accused and members of the deceased's family. Evidently from the evidence of Smt. Baniyani (Pw 4) the appellant opened attack on the persons of deceased and his mother (Pw 4) only because he was asked for whereabouts of their she-buffalo. In the ordinary course of nature and circumstance this cannot be the reason for opening an aback. It is thus clear that something more happened at the time of incident and those are being concealed by the prosecution. On this count, it can thus be said that the genesis and origin of the offence has been suppressed by the prosecution agency which makes prosecution story very doubtful-benefit of which must go to the accused. 26. In view of the circumstances brought on record which rather appears to be wrought by the prosecution agency, it cannot be claimed that there were reasons before the appellant to have made brunt on Smt. Baniyani (Pw 4) or the deceased because, none of the witnesses have deposed that any damage was caused to the crop of the accused nor was there any prosecution case that she-buffalo entered into his field (accused's) rather none of the witnesses deposed that any crop of the accused was standing on his field. Contrarily, in the report it has been stated that the accused was sleeping on the well of Narain. Contrarily, in the report it has been stated that the accused was sleeping on the well of Narain. But it has not been explained as to what relations had the appellant with Narain and what was the occasion for the accused to be present at the well of Narain. In the absence of any reliable evidence on the aforesaid features regarding complicity of the accused in the impugned crime, it cannot be believed that the appellant might have or had made brunts on the persons of Smt. Baniyani (Pw 4) or her son (deceased) which could be possible only when their relations were strained with each other and, therefore, the accused was in search of a chance to revenge against the complainant party (Pw 4 & Pw 5) but that is not the case of prosecution. 27. The features referred to above cannot be eschewed as irrelevant rot and the entire gamut of facts & circumstances has to be adverted to on the question of complicity of the accused in the crime. In the present case the catalogue of circumstances wrung out from the prosecution evidence and material on record set out in the earlier part of the judgment strikes a contrary note that the prosecution witnesses having bargained for their immunity, failed to prove their worthiness for credibility in court rather the story put by them does not involve the accused in the crime and appears intrinsically to be unnatural and improbable catalogue of events that had taken place and that apart does not implicate the accused in such a manner as the give rise to a conclusion of guilt beyond reasonable doubt. Certain clinching features of involvement disclosed by the witnesses appertaining to the accused by the touch stone of other evidence does not give the assurance for acceptance of their testimony on which the conviction can be based. Lest the prosecution story was a blatant lie. The witnesses betrayed true colour and they are of types who in blind loyalty and support to the case of the party calling them would not hesitate to tell lies even in regard to patent facts. In the net analysis, the evidence rendered by the prosecution witnesses was unimpeachable, unblemished that it could be safely accepted without source. 28. The facts and circumstances narrated above demolish the entire edifice and fabric of the prosecution case. In the net analysis, the evidence rendered by the prosecution witnesses was unimpeachable, unblemished that it could be safely accepted without source. 28. The facts and circumstances narrated above demolish the entire edifice and fabric of the prosecution case. We are, therefore, unable to maintain the conviction of the appellant for the offence he was convicted. 29. In the result, we allow the appeal of Prahlad. His conviction under Section 302, IPC and the sentence awarded to him there under are set aside and he is acquitted of the said offence. He is in jail. He shall be immediately set forth at liberty if not wanted in any other case. *******