JUDGMENT 1. 1. This appeal is directed against the judgment dated 2.6.1992 passed by the Special Judge, S.C./S.T. (Prevention of Atrocities) Cases, Udaipur, by which the learned Special Judge convicted the accused-appellant for the offence under Section 302 IPC and sentenced him to undergo imprisonment for life and a fine of Rs. 1000/- and in default of payment of fine further to undergo six months' rigorous imprisonment. 2. Appellant Sawa was tried by the learned Special Judge, S.C./S.T, (Prevention of Atrocities) Cases, Udaipur, for the offence under Sec, 302 IPC for committing the murder of his brother Dewa in the outskirts of village Patiya at a distance of thirteen kilometres from Police Station, Gogunda, by inflicting injuries with a Kulhari. The case of the prosecution is that accused Sawa and deceased Dewa were the brothers and there was a dispute between these two brothers regarding the land. Two days before the occurrence, accused Sawa committed the theft of unriped mangoes from the mango tree of Dewa and on that account some altercations took place between the brothers. On 30.5.87, Vajja and his younger brother Kesu and his wife had gone for labour work at Bagdunga road and in the evening when they returned from, the labour-work at about the sun-set, he was informed by his son Kanna that accused Sawa has committed the murder of Dewa by Kulhari and after committing the murder the accused had run towards village Rodmala and he had seen the accused running with a Kulhari. After being informed by Kanna, Vijja went towards the hillock. In the meantime, Kesu, also, came there. Both of them saw Dewa lying on the ground. Both of them decided first to call the Ward Panch and the villagers and thereafter to proceed Towards the corpse of Dewa. After taking such decision, they went to the house of Sakra and Homa and informed them that Sawa has committed the murder of Dewa and asked them to accompany them. Sakra asked them that they should first, go to the Ward Panch and thereafter they should proceed in the manner as will be suggested by the Ward Panch. Both the brothers thereafter went to the house of Raju - the Ward Panch - and informed him regarding the incident. Raju Panch came with them. Sakra and other villagers were, also, called. Badda S/o Bhera, Badda S/o Nawa and Daula, also, came there. Both the brothers thereafter went to the house of Raju - the Ward Panch - and informed him regarding the incident. Raju Panch came with them. Sakra and other villagers were, also, called. Badda S/o Bhera, Badda S/o Nawa and Daula, also, came there. Chana, Gama and Nana had already reached there. All of them proceeded towards the place where the deadbody of Dewa was lying and in the light saw injuries 011 the left side of the neck of Dewa. They, also, saw a cut on the left side of neck of Dewa and blood was coming out from that injury. An injury was, also, found on the stomach of Dewa. Kalu, Daula and Vajja were thereafter sent to lodge the report. All of them proceeded towards Police Station, Gogunda and lodged the report on 31.5.87 at 2.30 a.m, The prosecution, in support of its case, examined fourteen witnesses. The learned trial Court, after trial, convicted and sentenced the accused-appellant as stated above. While convicting the accused, the learned trial Court came to the conclusion that PW 6 Kanna had seen the accused going from the place of the incident. This evidence finds corroboration from the evidence of PW 1 Vajja, PW 2 Badda, PW 3 Raja alias Raju, PW 4 Kesha, PW 5 Kalu, PW 6 Kanna, PW 7 Tuisi, PW 8 Prem Chand, PW 10 Chaina and PW 11 Nana, who came at the scene of the occurrence after they were called. The learned trial Court, also, came to the conclusion that this evidence is further corroborated from the recoveries of the shoes of the accused from the place of the incident as well as that of the blood-stained Kulhari on the information and at the instance of the accused. 3. The nature of the evidence, produced by the prosecution, consists of the evidence of PW 6 Kanna, who had seen the accused running from the place of the incident from a distance of thirty paces (about 150 feet). He has stated that on the day of the incident, in the evening, he was in his field. Nana and Homa came on the hillock and cried that Dewa has been killed by accused Sawa. He ran towards the hillock, where Nanda and Homa were there and he saw accused Sawa running with a Kulhari and Dewa was lying on the ground near the boundary of the field. Nana and Homa came on the hillock and cried that Dewa has been killed by accused Sawa. He ran towards the hillock, where Nanda and Homa were there and he saw accused Sawa running with a Kulhari and Dewa was lying on the ground near the boundary of the field. His father Vajja and uncle Kesu were working as labourers in the construction of the road. Raju - the Ward Panch -was called and the matter was reported to the police. This evidence is sought to be corroborated by the evidence of other persons who came at the scene of the occurrence after they were informed about the incident. PW 1 Vajja has stated that in the evening when he returned from the labour-work, he was informed by his son Kanna that Dewa has been murdered by Soma by inflicting injuries with a Kulhari. They went to inform the Ward Panch and the Ward Panch came at the place of the incident and the light they saw the deadbody of Dewa. The Ward Panch asked them to report the matter to the police. Hakra was, also, called but he did not come to the place of the occurrence. Badda S/o Nawa, Badda S/o Bhera and Daula were, also, called there. Nana was, also, called. He Kalu and Daula went to Police Station, Gogunda and lodged the report. According to him, there was a dispute between the accused and the deceased regarding the field and a day before the incident, a quarrel took place between accused Sawa and deceased Dewa regarding the theft of unriped Mango. Similar is the statement of Badda who was called by Kesu and Kalu and who went to the place of the incident. Similar is the statement of Badda S/o Bhera. PW 3 Raja alias Raju is the Ward Panch, who was informed regarding the incident by Vajja and Kesu and who, alongwith them, went to the place of the incident and in the presence of other witnesses, saw the deadbody of Dewa lying there. He thereafter sent Kalu, Vajja and Daula to lodge the report. He is, also, a Motbir witness to the preparation of site-plan, Panchnama and the recoveries of various articles. He thereafter sent Kalu, Vajja and Daula to lodge the report. He is, also, a Motbir witness to the preparation of site-plan, Panchnama and the recoveries of various articles. PW 4 Kesha has stated that on the day of the incident, when he returned from the work, his son Nanda and Homa informed him that Sawa has committed the murder of Dewa Baa by Kulhari and they had seen the incident from the hillock. After being informed by Nanda and Homa, he went to the house of Hakra and from there to the house of Ward Panch and all of them thereafter collected at the place of the incident and found injuries on the neck of Dewa in the light. Thereafter Kalu, Vajja and Daula were sent to lodge the report but he cannot say whether the shoes of the accused were lying there at that time or no. This witness is, also, a witness to the preparation of Panchnama - Lash Ex.P. 4. PW 5 Kalu was called by PW 3 Raju Ward Panch, Daula and Vajja. According to him Dewa was killed by Sawa. When they reached near the place of incident, Chaina, Badna, Nana, Daula and Kesha were there. He, alongwith Daula and Vajja went to lodge the report at the Police Station. PW 7 Tulsi is the daughter-in-law of the deceased. She has stated that her father-in-law Dewa was killed by Sawa. According to her, a day before- the incident, Sawa had committed the theft of unriped mangoes from their field and there was a dispute between Dewa and Sawa regarding the land. She has, however, admitted in the cross-examination that the land in dispute was in possession of the accused and he was not permitting them to enter into the field and had lodged an FIR against Dewa in which a charge-sheet was filed against Dewa. PW 8 Prem Chand is a Motbir witness to the recoveries and preparation of various memos in his presence. He is witness to the recovery of the blood-stained Kulhari from the house of the accused. He has stated that the Kulhari was recovered in his presence on 1.6.87 while Ex.P. 9 shows that the recovery of the Kulhari was made on 3.6.87. PW 9 Daula has stated that there was a dispute between accused Sawa and deceased Dewa regarding the land. He has stated that the Kulhari was recovered in his presence on 1.6.87 while Ex.P. 9 shows that the recovery of the Kulhari was made on 3.6.87. PW 9 Daula has stated that there was a dispute between accused Sawa and deceased Dewa regarding the land. After the murder of Dewa, he was called by Vajja, Kesu, Badda and others and when he went there, he saw the dead body of Deva lying there and found injuries on his neck. The plastic shoes were, also, there, Raju, the Ward Panch, wrote a report and gave it to them. He, Kalu and Vajja thereafter went to the Police Station and handed over the report to the police. PW 10 Chaina - the father of PW 3 Kesha has stated that Dewa and Sawa were his nephews. On the day of the incident he had gone for labour work in village Garniya. In the evening when he returned, he was informed by Soma, and Nanda that Sawa has killed Dewa in the slope of the hillock near Mahuwa tree on the bank of the Bandha and they had seen the accused committing the murder when they were eating Badla. He went at the place of the incident and saw Dewa lying on, the ground. Vajja and Kesa thereafter gone there and he asked them to call the villagers. They thereafter called Tola, Badda and Raju - the Ward Panch and all of them went near the deadbody of Dewa and in the light they found an injury on the neck of Dewa. Raju - the Ward Panch - t hereafter wrote the report which was given to Vajja to lodge at the Police Station. Vajja, Daula and Kalu thereafter went to the Police Station and lodged the report, PW 11 Nana has stated that there was a dispute between accused Sawa and the deceased regarding the land. When Dewa was murdered, at that time he and Gamna had gone to the hillock. In the evening they returned to their house. Chaina called him and all of them thereafter went to the place of the occurrence and saw in the light the injury on the neck of Dewa. In the morning, they saw shoes lying near the deadbody. PW 12 Dr. Surendra Singh conducted the post-mortem on the deadbody of Dewa. In the evening they returned to their house. Chaina called him and all of them thereafter went to the place of the occurrence and saw in the light the injury on the neck of Dewa. In the morning, they saw shoes lying near the deadbody. PW 12 Dr. Surendra Singh conducted the post-mortem on the deadbody of Dewa. PW 13 Shanker Singh was the Station House Officer, who conducted the investigation and presented the challan. PW 14 Om Prakash was the Police Constable posted at Police Station, Gogunda on 15.6.97 and he took four sealed packets for F.S.L. examination and after obtaining the forwarding letter from the office of the Superintendent Police, Udaipur, deposited these sealed packets in the State Forensic Science Laboratory, Jaipur. 4. This is all the evidence produced by the prosecution in support of its case. Soma and Nanda (sons of Kesha) were the only eye-witnesses of the occurrence, as per the prosecution case, but they have not been produced by the prosecution. If they would have been produced, the real story could have come on record. The non-production of these two eye-witnesses raises a suspicion in the prosecution case. The genesis of the story has, also, been suppressed by the prosecution. So far as the motive is concerned, though the learned trial Court has believed the motive with the accused but actually the accused had no motive whatsoever to commit the murder of Dewa due to the dispute regarding the land in question because admittedly, the land regarding which there was a dispute between the accused and the deceased, was in the possession of the appellant and he had lodged an FIR against deceased Dewa and on the basis of that FIR, as admitted by PW 7 Smt. Tulsi, a charge sheet was filed against Dewa. The grievance was, therefore, with Dewa and not with the accused-appellant. The motive was, therefore, with the deceased to raise a quarrel and not with the accused. The learned trial Court was, therefore, not justified in believing the evidence of motive against the accused- appellant. 5. The case of the prosecution mainly rests upon the evidence of PW 6 Kanna. He has not seen the accused inflicting injuries to Dewa with a Kulhari but he had seen the accused running from a distance of thirty paces (about 150 feet) from the place of the incident. 5. The case of the prosecution mainly rests upon the evidence of PW 6 Kanna. He has not seen the accused inflicting injuries to Dewa with a Kulhari but he had seen the accused running from a distance of thirty paces (about 150 feet) from the place of the incident. He has, also, stated that he went on the hillock on hearing the cries of Nana and Homa. Nana has nowhere stated that he was on the hillock and saw the accused inflicting injuries to Dewa. Nanda and Soma, who were the alleged eye witnesses of the occurrence, have not been produced. This part of the story that the incident was witnessed by Soma and Nanda has not been mentioned in the FIR. He alleges to have seen the accused inflicting injuries to Dewa but still he did not attend Dewa. He did not supply Dewa any relief though he was his uncle. According to him, he went to his house, informed his father and thereafter did not go to the place of the incident. Looking to the conduct of this witness after seeing the incident and not taking any care of the injured after seeing him lying on the round, raises a suspicion regarding his presence at the scene of the occurrence. After going through the statement of this witness, we are of the opinion that this witness is not speaking truth and he had not seen the accused at the place of the incident. 6. The other witnesses produced by the prosecution are of no consequence because they have not seen the accused ether inflicting injuries to Dewa nor near the place of the incident. They were called after the incident was over and they collected there after the incident and after consultation, the report was written by Raju - the Ward Panch - which was sent to the Police Station with Vajja, Kalu and Daula, but this written report, which was written by PW 3 Raju - the Ward Panch - was not lodged at the Police Station and was suppressed and instead thereof, the verbal report was lodged, on the basis of which the case was registered. Suppression of the written report by Kalu, Daula and Vajja, also raises a suspicion in the prosecution case and as shown that the genesis the story has been suppressed. Suppression of the written report by Kalu, Daula and Vajja, also raises a suspicion in the prosecution case and as shown that the genesis the story has been suppressed. It appears that none of the villagers had seen the occurrence and when the deadbody of Dewa was found, all of them collected there and on the basis of suspicion and the dispute between the accused and the deceased regarding the land, the accused has been implicated in the crime. 7. The next circumstance, relied upon by the prosecution and believed by the learned trial Court is the recovery of the plastic shoes from the place of the incident. PW 13 Shanker Singh, S.H.O. has admitted in the cross-examination that he did not verify by putting the shoes in the feet of the accused to find out whether these were the shoes of the accused. If the shoes recovered from the place of the incident were not the shoes of the accused then only on the basis of the evidence of Nana that the shoes belongs to the accused, it cannot be inferred that actually the shoes belong to the accused. PW 1 Vajja, on the other hand, has stated that the shoes belong to Nana. PW 2 Badda states that the shoes recovered from the place of the occurrence were made of leather and lying at a distance of ten feet from the deadbody of Dewa while the shoes recovered was made of plastic which is commonly worn by the villagers. The other witnesses have, also, stated that the shoes recovered were made of plastic. PW 3 Raju has stated that Sawa's shoe was lying under the deadbody of Dewa, and Gamna and Nana informed him that the shoes belong to Sawa. PW 4 Kesha has shown his ignorance regarding the recovery of the shoes from the place of the incident. Kalu has stated that the shoes were recovered near the deadbody of Dewa, and Gamna informed that the shoes belong to his brother. In his statement before the police, this witness has not disclosed that the shoes were found at the scene of the occurrence. He has, also, admitted that he cannot say, to whom the shoes belonged. PW 8 Prem Chand has stated that the shoes were lying near the deadbody of Dewa on the eastern side and the same were recovered vide Ex.P. 7. He has, also, admitted that he cannot say, to whom the shoes belonged. PW 8 Prem Chand has stated that the shoes were lying near the deadbody of Dewa on the eastern side and the same were recovered vide Ex.P. 7. PW 9 Daula has stated that near the deadbody of Dewa, plastic shoes were lying and Nana informed that these shoes belong to accused Sawa. In the cross-examination he has admitted that he did not see the shoes in the night but saw these shoes only in the morning. PW 10 Chaina has, also, stated that in the night they could not see the shoes but on the next day, in the morning, they saw a pair of plastic shoes lying near the deadbody of Dewa, and Nana, on seeing the shoes, disclosed that the shoes belong to accused Sawa. This witness has further admitted that the shoes were lying near the deadbody at a distance of about four to five feet. PW 11 Nana has stated that he did not see any shoe in the night but in the morning saw one plastic shoe lying near the deadbody of Dewa which belongs to the accused. In the cross-examination, he has admitted that he saw only one shoe and he disclosed before the police that a pair of shoes was seen by him. PW 13 Shankar Singh has nowhere stated regarding the recovery of the shoes of the accused- appellant. He has only recovered the shoes of the deceased vide Ex.P. 7, which has been marked as Article 1. The discrepancies in the statements of the witnesses regarding the place from where the shoes were recovered, not seeing the shoes by some of the witnesses in the night and their seeing the shoes only in the morning of next day, the material of the shoes, etc. make the recovery of the shoes allegedly belonging to the accused wholly unreliable and suggest that the shoes have been planted by someone. Even the link evidence in this regard is missing. The prosecution has, thus, failed to prove this circumstance against the accused-appellant and the learned trial Court was not justified in believing this circumstance against the accused-appellant. 8. The next circumstance relied upon by the prosecution and believed by the learned trial Court is the recovery of the blood-stained Kulhari on the alleged information and at the instance of the accused-appellant. 8. The next circumstance relied upon by the prosecution and believed by the learned trial Court is the recovery of the blood-stained Kulhari on the alleged information and at the instance of the accused-appellant. According to PW 13 Surendra Singh, S.H.O., the recovery of the Kulhari was made on 3.6.87 while PW 8 Prem Chand has stated that the recovery of the Kulhari was made on 1.6.87. The recovery of Kulhari was made from the Dhaliya which was not closed, as admitted by PW 13 Surendra Singh and had no doors. Even the link evidence that the seals of the Kulhari remained intact from the date of its seizure till it reached the aforesaid Laboratory is missing. PW 13 Surendra Singh seized the Kulhari on 3.6.87 and PW' 14 Om Prakash, Police Constable, took the articles for ES.L. examination on 15.6.87. In whose custody the articles remained during this period, has not been proved. It has, also, not come in the evidence that the seals on this article remained intact through-out. The discrepancy in the date of recovery of the Kulhari and the missing link evidence regarding infactness of the seals on this article, make the recovery of the Kulhari suspicious. The recovery of the blood-stained clothes of the accused, also, suffers from the same infirmities and discrepancies like that of Kulhari. The link evidence is missing and as such these recoveries do not stand proved against the accused- appellant. 9. There is no other evidence connecting the accused- appellant with the crime. The learned Special Judge was, therefore, not justified in convicting and sentencing the accused-appellant and the judgment passed by the learned trial Court, therefore, deserves to be set aside and the accused-appellant deserves acquittal. 10. In the result, the appeal, filed by the accused- appellant is allowed. The judgment dated 2.6.92, passed by the learned Special Judge, S.C./S.T. (Prevention of Atrocities) Cases, Udaipur, convicting and sentencing the accused-appellant for the offence under Section 302 IPC, is set aside and the appellant is acquitted of all the charges levelled against him. The appellant is in jail and he be released forthwith if not required in any other case.Appeal allowed & conviction set aside. *******