JUDGMENT 1. - This jail appeal is directed against the judgment dated 29.8.1990 passed by the learned Sessions Judge, Pratapgarh whereby he has convicted the accused appellant Basant Lai under Sections 302 & 201 IPC. Under Section 302 IPC, the learned Sessions Judge has sentenced the accused to life imprisonment with a fine of Rs. 100/- and in default of payment of fine to further undergo three months R.I. The learned Sessions Judge, Pratapgarh sentenced the accused- appellant under Section 201 IPC to three years' R.I. with a fine of Rs. 100/- and in default of payment of fine to further undergo three months' R.I. Both the sentences were ordered to run concurrently. 2. Briefly stated the facts of the prosecution case are that on 15.12.1988 at 11.00 p.m. L.C. Ratansingh of Dist. Special Branch gave an information in writing to the Station House Officer, Pratapgarh to the effect that he has received a secret information that the accused Basant Lal after killing his son Prahlad four months ago had gone to Ujjain and buried the dead-body in the house of his uncle Rugnath Kumawat, situated nearby the house of the accused. It was also alleged that before 5-7 days the accused returned back to Pratapgarh and he took out the dead-body from the pit and had burnt it before four days. It was further alleged by Ratansingh that he himself made an enquiry about the information by visiting Talai Mohalla, Pratapgarh. On this report case was registered and the accused was arrested on 15.12.1988. At the instance of the accused an iron box containing bones was recovered vide Ex.P/5 and one `iron Kuri' was also recovered vide Ex.P/4. After digging the earth from a pit coal ash and salt were found which were seized and sealed. All these articles were sent to Forensic Science Laboratory for examination. The case was ultimately committed to the court of Dist. & Sessions Judge Pratapgarh. Charges under Sections 302 and 201 IPC were framed against the accused Basant Lal to which he pleaded not guilty and claimed trial. The prosecution in support of its case produced as many as ten witnesses but no witness was examined in defence. The learned Sessions Judge after completion of the trial convicted and sentenced the accused-appellant Basant Lal as mentioned above. The prosecution in support of its case produced as many as ten witnesses but no witness was examined in defence. The learned Sessions Judge after completion of the trial convicted and sentenced the accused-appellant Basant Lal as mentioned above. Dissatisfied with the conviction and sentence passed against him, the accused Basant Lai has filed this Jail appeal. 3. Mr. Bheem Arora, learned Amicus Curiae has contended that the learned trial court has wrongly convicted the accused-appellant without appreciating the evidence on record and, therefore, the convictions and sentences passed against the appellant may be set aside. 4. On the other hand learned Public Prosecutor has supported the judgment. 5. We have heard learned Amicus Curiae and the learned Public Prosecutor and also perused the material on record carefully. 6. Before we proceed to examine the contentions advanced by the learned counsel, it would be proper to read the relevant evidence available on record. 7. PW 3 Mst. Sohanbai who is the mother of the deceased and wife of the accused Basant Lal, has stated that the accused Basant Lal killed Prahlad by beating him with `lathi'. She has stated that when her son Prahlad was five years old the accused beaten him which resulted in breaking of his back bone and he became handicapped. She has stated that in her presence the accused gave beating to Prahlad in the evening and also in the morning due to which the deceased received injuries on his head and lungs. She has also stated that her husband told her to take care of the deceased as he will die and thereafter she saw that here son had passed away. She has further stated that she started weeping but the accused threatened her that she will also be killed in case she tells about this incident to any body. After digging a pit in `chowk' the accused had buried the dead body and at the time when he buried the dead body her daughter PW 4 Mst. Lata and her son PW 5 Dinesh were also there. PW 3 has stated that after 3-4 months of burying the dead-body, the accused went to Ujjain fare and returned back after 20-21 days. Lata and her son PW 5 Dinesh were also there. PW 3 has stated that after 3-4 months of burying the dead-body, the accused went to Ujjain fare and returned back after 20-21 days. She has also stated that her other son PW 6 Lokesh came back on the day when her husband went out and on enquiry made by her son Lokesh about his brother Prahlad she told that the accused gave beating to Prahlad due to which he died and the dead body was buried. Mst. Sohanbai PW 3 has also stated that when her husband returned back he gave her beating because it has come to his notice that she has narrated the whole incident to Lokesh. PW 3 Mst. Sohanbai has further stated that the house of Rughnath Kaka is in their possession as Rughnath Kaka does not reside there for the last ten years and the accused gave beating to the deceased Prahlad in the house of Rughnath Kaka with a `Sukhla' lying in that house. She has stated that her husband tried to burn her and he also gave beating to her son Lokesh due to which he ran away. PW 3 has further stated that the police came after 8-10 days of the burning of the dead body.In her cross-examination she has stated that due to injuries sustained by Prahlad blood came out and the `Sukhla' with which the accused gave heating to her son was also stained with blood. She has also stated that after the dead body was burnt she went to Udaipur but she did not tell any thing to any body about the incident. She has further stated that she did not see the accused burning the dead body and in the morning she came to know due to fume and flames of fire. She has further stated in the cross examination that there is no house nearby her house. 8. PW 4 Mst. Lata has stated that her father had killed Prahlad. She has stated that her father buried the dead body in the chowk outside the room of Prahlad. She has further stated in the cross examination that there is no house nearby her house. 8. PW 4 Mst. Lata has stated that her father had killed Prahlad. She has stated that her father buried the dead body in the chowk outside the room of Prahlad. She has also stated that `Sukhla' was lying in the room of Prahlad PW 4 Lata has stated that her father had gone to Ujjain and after 2-3 days her brother Lokesh came Pratapgarh who was informed about the incident by her mother and on hearing it he returned back. In her cross-examination she has stated that sne did not see the whole incident of beating and also did not see any injury on the head of the deceased but her mother told him in this regard. She has also denied witnessing of digging of pit and burying of the dead body and also stated that the body was not burnt in her presence but she saw flames of the fire. She has further stated that about 25.30 houses are there in the vicinity. 9. PW 5 Dinesh has stated that his brother has expired as his father had given him beating. He has stated that his mother told him that the dead body of the deceased Prahlad had been taken out and his bones were buried. He has also stated that report of the incident was not made due to fear of his father. He has also stated that `Sukhla' was lying in the room of the deceased Prahlad. In his cross- examination he has stated that he did not see the accused giving beating to the deceased. PW 5 has also stated after the death of Prahlad he saw that the deceased sustained one injury in the left side of the head and 10-15 injuries were on the hands and legs of the deceased and blood was oozing out of those injuries due to which the clothes worn by the deceased were also stained with blood. He has further stated that he did not witness the burying of the dead body and at that time he was studying. Dinesh has also stated that there are 25-30 houses in 'Bakshigali' where about 300-400 people are residing and in the adjacent house of Salamgarh Thakur 2-3 persons are residing. He has further stated that he did not witness the burying of the dead body and at that time he was studying. Dinesh has also stated that there are 25-30 houses in 'Bakshigali' where about 300-400 people are residing and in the adjacent house of Salamgarh Thakur 2-3 persons are residing. In the vicinity i.e. Tala Mohalla there are 500- 600 houses and whole day people pass on the road. 10. PW 6 Lokesh has stated that after he had returned from Mandsore his mother narrated the whole incident of murder of Prahlad by the accused but due to fear of his father he did not report the matter to the police. 11. PW 10 Ratansingh, Constable Dist. Special Branch, Pratapgarh has stated that on 15.12.1988 he received an information from `Mukhbir' that Basant Lai killed his son Prahlad and after killing he buried the dead body in the house of Rugnath Kaka. He has stated that as per the information the accused Basant Lal had gone out and came back after four days and burnt the dead body after taking it out from the pit. He has also stated that on the said information he got registered EI.R. at 11 a.m. He has further stated that Ex.P. 1 and Ex.P. 2 were prepared at his instance in the presence of Motbirs. PW 10 has also stated that he received the information regarding burying of dead body in a pit just four days before the dead body of Prahlad was burnt. He has stated that he did not inform the matter to the police for the reason that due to this the accused will be alert and may abscond, therefore, after the accused returned back he informed the police. In his cross-examination he has stated that he gave oral information to the Addl. S.P. & Addl. S.P. but they orally directed him to keep watch on the accused and as soon as the accused returns report the matter. He has also stated that he did not make any investigation from the neighbours. He has further stated that he visited the house of the accused but made no enquiry from the accused and the contents of Exhibits prepared at his instance were shown by him on the basis of his knowledge. 12. He has also stated that he did not make any investigation from the neighbours. He has further stated that he visited the house of the accused but made no enquiry from the accused and the contents of Exhibits prepared at his instance were shown by him on the basis of his knowledge. 12. PW 7 Sumer Singh, S.H.O. has stated that at the instance of the accused he recovered an iron box containing bones vide Ex.P/5. He has stated that at the instance of the accused an iron `kuri' was recovered from a corner of the room which was used in digging pit. In his cross-examination he has admitted that he did not take the evidence of the neighbours of the accused. He has also stated that on 15.12.1988 at 12 in the noon, Ratan Singh showed the place of occurrence and Ex.P/1 was prepared at that time as per the information given by Ratan Singh regarding the place of burying and the place where the body was burnt. After two hours to verify the place of occurrence he took the accused at the place of occurrence. He has admitted that he did not weigh the bones recovered nor counted them. He has further stated that the place from where the box containing bones was recovered was an open place and also admitted that in the Panchnama he did not record that the bones recovered are of which part of the body. 13. Considering the entire material evidence on record, it reveals that the prosecution has mainly relied on the testimony of PW 3 Mst. Sohanbai. She is the mother of the deceased Prahlad and the wife of the accused appellant Basant Lal, and has informed the other witnesses about the incident. According to this witness at the time when the dead-body was buried her daughter PW 4 Mst. Lata and son PW 5 Dinesh were present. Whereas these witnesses do not support her version. PW 4 Mst. Lata has specifically stated that when the accused buried the dead- body she was not present. PW 4 Mst. Lata has also stated that the body was not burnt in her presence. Likewise PW 5 Dinesh has stated that he did not visit the place where the dead-body was buried rather at that time he was studying in his room.PW 3 Mst. PW 4 Mst. Lata has also stated that the body was not burnt in her presence. Likewise PW 5 Dinesh has stated that he did not visit the place where the dead-body was buried rather at that time he was studying in his room.PW 3 Mst. Sohanbai has stated that the deceased received injuries on the head & lungs. She has also stated that at the time when the accused was giving beating to the deceased, there was no cloth on the body of the deceased. This version of PW 3 Sohanbai does not find corroboration from the statement of the other witness. PW 5 Dinesh has stated that the deceased had sustained injuries on his hands and legs due to which the clothes of the deceased were stained with blood.PW 5 Dinesh at one place stated that he did not see the accused beating the deceased. The version that of the eye- witness PW 3 Mst. Sohanbai that at the time when the deceased was beaten he was not having clothes on his body and that he received injuries on head & lungs does not find support from the statement of the other witness, particularly when in her police statement Ex.D/2 she has not stated anything about the injuries sustained by the deceased on the head and lungs.It may be stated that these witnesses are in relation with the deceased but non of these witnesses has tried to save him from the accused nor informed the matter to the police. Even the mother of the deceased i.e. PW 3 Mst. Sohanbai left the place after the dead body was burnt and went to Udaipur and returned back after some days, which was unnatural act. The only explanation given for not informing the matter to the police or any body else is that due to fear of the accused, they did not inform the police but no other independent witness was produced by the prosecution to establish the fact that the accused was cruel to his family members. It is pertinent to note that PW 3 Mst. Sohanbai went to Udaipur but neither at Udaipur nor at Pratapgarh itself she or her children tried to report the matter to the police even when the accused had gone to Ujjain. PW 3 Mst. It is pertinent to note that PW 3 Mst. Sohanbai went to Udaipur but neither at Udaipur nor at Pratapgarh itself she or her children tried to report the matter to the police even when the accused had gone to Ujjain. PW 3 Mst. Sohanbai has shown her ignorance as to when the dead body was burnt and according to her she came to know in the morning. She has also stated that when the dead body of Prahlad was taken out from the pit, there was no change in the skin. It is very strange that skin of a body which was buried four months ago remain unchanged. At the same time it is very difficult to believe that when the dead body was burnt no-one could know this fact as flames & fumes are bound to come out from fire. PW 3 Mst. Sohanbai has tried to justify the same and has stated that no-one resides in the nearby house whereas as per PW 4 Lata there are 25-30 houses in the Bakshigiri and in the adjacent Salamgarh Ki Haveli 2-4 persons reside. PW 5 Dinesh has also stated that in Talai Mohalla there are 500-600 houses and all the day persons pass through on the road. PW 4 Lata and PW 5 Dinesh do not support the version of PW 3 Mst. Sohanbai. Therefore, it creates doubt on the prosecution story that the dead body was burnt in the `Chowk' of the house of Rugnath Kaka because if it had happened so, the persons living nearby could notice flames of fire & fumes which as per the prosecution continued for hours together, but the prosecution has not produced any witness in support of its case rather PW 7 Sumer Singh has stated that no enquiry was made from the neighbours.PW 3 Mst. Sohanbai has stated that Prahlad was not suffering with T.B. and she did not get him treated whereas in the police statement she has stated that Prahlad was suffering from T.B. and she got him treated. When she was confronted with her earlier statement she could not give any explanation in this regard. In her statement given before the Court she has stated that the deceased received injuries on the head and lungs whereas in the police statement she did not make any such statement. When she was confronted with her earlier statement she could not give any explanation in this regard. In her statement given before the Court she has stated that the deceased received injuries on the head and lungs whereas in the police statement she did not make any such statement. In her cross-examination she has stated that in the police statement she stated that the children saw the accused beating the deceased but the police did not mention the same. When she was confronted with the statement given before the police `A to B' she stated that part was correct. It is relevant to mention here that as per this part of her statement the children could not see the accused beating the deceased because ' of a wall. Even PW 3 Mst. Sohanbai did not state anything regarding beating given to her and burning of her `Sari' in the police statement but before the Court she has stated that the accused gave her beating and also tried to burn her due to which her `Sari' caught fire. Not only in the statement of PW 3 Mst. Sohanbai but also in the statement of the other witnesses there are improvements as well as omissions regarding important part of the incident which are on material points and creates doubt on the prosecution story as also on the veracity of the testimony of these witnesses and when the persons who allegedly witnessed the incident so closely and are related with each other, it is not safe to convict the accused on the statement of such witnesses. 14. In this case, the manner in which the investigation has been conducted creates serious doubt on the entire investigation. PW 10 Ratan Singh, Constable on whose information the FIR was drawn has stated that he was knowing the fact of burying of the dead body but he did not inform the matter to the police for the reason that due to it the accused may be alert- and he may abscond. PW 10 Ratan Singh has stated that he made FIR after verification of the incident but from whom he made enquiry has not been named. On the contrary, he has stated that he did not make any investigation from the residents of `Talai Mohalla'. PW 10 Ratan Singh has stated that he made FIR after verification of the incident but from whom he made enquiry has not been named. On the contrary, he has stated that he did not make any investigation from the residents of `Talai Mohalla'. This PW 10 Ratan Singh on whose information Ex.P. 1 and Ex.P. 2 were prepared who showed the place where the dead body was buried and burnt. It is very unnatural on the part of a police personnel who did not make any investigation from the accused or from the witnesses about the incident but gave information regarding the place of occurrence. The behaviour of this witness creates doubt on one more point that despite he was knowing that the accused had killed his son and buried the dead body in the house of Rugnath Kaka he waited till the accused returned from Ujjain and burnt the dead body and thereafter reported the matter to the police. Therefore, no reliance can be placed on the testimony of such witness who is holding the post of Constable in District Special Branch but has miserably failed in discharging his duties. 15. This takes us to the consideration of circumstances of recovery of certain articles. According to PW 1 Dharamchand the accused got recovered bones from a pit. Likewise PW 2 Sajjanlal has also stated that from a pit coal and bones were recovered. As per the prosecution these articles were sent to Forensic Science Laboratory but the FSL report has not been produced nor there is any explanation in this regard. We, therefore, find that even the recovery of bones etc. does not advance the prosecution story. Further more, the recovery of bones contained in iron box is also of no avail as the same was recovered from an open place as per PW 7 Sumersingh, S.H.O. So far as the recovery of `iron kuri' is concerned, as per PW 1 Dharam Chand the accused got recovered `iron kuri' whereas according to PW 2 Sajjanlal the son of the accused produced `Kassi'. Both these witnesses are motbirs and the statement of both these witnesses are different. That apart it is also not clear from their statements that which article was recovered either `iron kuri' or `Kassi' or `Kulhari'. It is a material discrepancy which creates suspicion on the prosecution story as regards recovery of `Kuri'. Both these witnesses are motbirs and the statement of both these witnesses are different. That apart it is also not clear from their statements that which article was recovered either `iron kuri' or `Kassi' or `Kulhari'. It is a material discrepancy which creates suspicion on the prosecution story as regards recovery of `Kuri'. Furthermore, as per PW 3 Mst. Sohanbai `Sukhla' was lying in the room of Prahlad and `Sukhla' was blood stained but despite that there is no explanation as to why the police did not recover `Sukhla' and got the same examined, which creates doubt on the prosecution. 16. In view of the above discussion we find that the investigation carried is highly suspicious and the possibility that the accused has been falsely implicated cannot be ruled as the accused has specifically stated that he has deserted his wife for the last ten years. A realistic reading of the evidence available on record does not prove beyond shadow of reasonable doubt that the accused has killed Prahlad and buried his dead body and thereafter burnt the same. The version put forward by PW 3 Mst. Sohanbai does not find corroboration and credibility by the version of PW 4 Lata and PW S -Dinesh who were also said to be present at the time when the offence was committed. The other circumstances of recovery of `iron Kuri' and `iron box' containing bones also do not corroborate the prosecution version. Viewed in this profile, we are unable to agree with the findings of the learned Sessions Judge that the accused has committed the offence as the learned trial court has failed to appreciate the evidence in right perspective. 17. In the result, we allow this appeal convictions and sentences awarded to the accused appellant Basant Lal under Section 302 and 201 IPC by the learned trial court as per judgment dated 29.8.1990, are set aside. The appellant is acquitted of the charges framed against him. The appellant Basant Lal is in jail and he shall be released forthwith if not required in any other case.Appeal allowed - Accused acquitted. *******