JUDGMENT 1. - Appellants Taru and Ram Singh have been convicted by the learned Sessions Judge Udaipur vide judgment dated 10.8.90 under section 302 read with Section 34 IPC and sentenced to undergo imprisonment for life and pay a fine of Rs. 100/-; in default one month's simple imprisonment. They have preferred separate appeals. Both the appeals are being disposed of by this judgment. 2. The prosecution case, in short, is this. Deceased Ratta was suspected to possess skill of killing persons by applying `Mooth' Some months before the murder of Ratta he applied such a skill. One person by name Roopa lost his life. It is said that people of the area, including accused Taru and Ramsingh, collected and discussed the matter and they threatened Ratta that if he continued to apply such skill in future, he would be turned out of the village. It is alleged that on 22.11.88 when the deceased Ratta was having dinner at his residence,'accused Ramsingh went there and asked him to accompany him. Ratta went away aloongwith accused Ramsingh, leaving the food. After sometime, PW 2 Pratapi who is wife of deceased Ratta, heard a cry and when she went, she found her husband Ratta lying in burnt condition. She lifted her husband and took her to her residence where Ratta told her that accused Taru and Ramsingh had sprinkled acid on him. Ratta breathed his last on 23.11.88 and thereafter the FIR was lodged by Kalu (PW 1), brother-in-law of the deceased. After registering the case No. 193 of 1988, the Station House Officer, Police Station, Dabok conducted the investigation. The post mortem examination of the dead body was conducted by Dr. Mahendra Gupta (PW 11). The police inspected the site, interrogated the witnesses and arrested the accused. On the information of the accused persons, some articles were recovered. After the completion of the investigation, the challan was submitted. The learned Sessions Judge charged both the accused with the offence under section 302/34 IPC. They pleaded not guilty. The prosecution examined PW 1 Kalu, PW 2 Pratapi, PW 3 Uda, PW 4 Moti, PW 5 Chandan Singh, PW 6 Lal Singh, PW 7 Kani, PW 8 Gajendra, PW 9 Kesar Singh, PW 10 Bhawar Lai, PW 11 Dr. Mahendra Gupta, PW 12 Mangilai, PW 13 Mohd. Sarif and PW 14 Surendra Singh. Accused in their statements recorded under Section 313 Cr.RC. Mahendra Gupta, PW 12 Mangilai, PW 13 Mohd. Sarif and PW 14 Surendra Singh. Accused in their statements recorded under Section 313 Cr.RC. denied having committed any offence. They also denied the recovery of their instance. Their case was that they have been implicated falsely in this case as in the meeting held against deceased Ratta, they were also there and they had told Ratta to stop the using of skill; otherwise they would turn him out of the village. They examined DW 1 Bhana and PW 2 Udailal in their support. The learned Sessions Judge after considering the evidence convicted and sentenced the appellants as aforesaid. 3. The arguments of learned counsel for the appellants and learned Public Prosecutor, appearing for the State have been heard. By the statement of Dr. N.K. Gupta, PW 11, it is fully established that Ratta had suffered 70% burns and he died of the burn injuries. 4. Mr. Choudhary, learned counsel for the appellants contended that the statements of PW 2 Pratapi regarding the dying declaration should not have been believed by the trial court. According to him the delay of two days in lodging the FIR is fatal to the prosecution case. His further contention was that the evidence of recovery at the instance of the accused was not proved on record, and the Investigating Officer has planted this recovery in order to secure conviction of the accused. According to him, the injuries found on the hands of accused were caused by caustic soda and they had no occasion to use sulphuric acid. 5. As against this, Ms. Chandra Lekha, Public Prosecutor appearing for the State has tried to support the judgment of the Trial Court. 6. We have given the matter our thoughtful consideration. 7. We shall first consider the dying declaration contained in the statement of PW 2 Pratapi. She has deposed that after her husband went alognwith accused Ramsingh, she heard a cry and when she went in the jungle, she found her husband in burnt condition. She has further deposed that Ratta told her that Ramsingh and Taru had poured acid on him. She has then deposed that she took her husband to her house by bodily lifting her and thereafter she tried to call the neighbours, but none came. She has further deposed that Ratta told her that Ramsingh and Taru had poured acid on him. She has then deposed that she took her husband to her house by bodily lifting her and thereafter she tried to call the neighbours, but none came. According to her, next day neighbours including Lal Singh PW 6 and Chandan Singh PW 5 came to her house and Ratta had told them that both the accused had poured acid on him. She has further deposed that she had gone to her father's house and informed her mother PW 7 Kani about it. 8. The first point that arises for our consideration is to whether this part of statement of PW 2 Pratapi is correct that on hearing the cry, she had gone to the spot. According to this witness, the place of occurrence was situate some two miles (one kos) away from her house. It can hardly be believed that Pratapi would hear the cry of her husband made at a distance of 3 kms. away. Even if an allowance is given that Pratapi being illiterate, could not understand in the measurement, it does not help the prosecution. According to Surender Singh PW 14, Investigation Officer, the place of occurrence was one and half kilometer away from the house of Ratta. It is difficult to believe that Pratapi could hear the cry of her husband made at a distance of one and half kilometer. 9. Now the question that arises for consideration is as to whether Ratta had informed Pratapi that both the accused has poured acid on him. Pratapi has changed her version regarding the place where Ratta is said to have informed her. In her examination in chief, she stated that at the place of occurrence Ratta had told her; whereas in her cross examination, she deposed that Ratta told her after she reached her house alongwith Ratta. Be that as it may, this part of the statement that Ratta had informed Pratapi that accused had pourned acid on him does not appear to be true in view of the other evidence on record. According to Pratapi, Chandan Singh PW 5 and Lal Singh PW 6 had visited her house next day in the morning and at that time, Ratta had told that the accused had poured acid on him. According to Pratapi, Chandan Singh PW 5 and Lal Singh PW 6 had visited her house next day in the morning and at that time, Ratta had told that the accused had poured acid on him. However, both the witnesses have not disclosed this fact in their depositions. It is significant to point out that even questions have not been asked to them by the Public Prosecutor on this point. When these two independent witnesses do not depose that Ratta had told them that Ramsingh and Taru had pourned acid on him, the statement of Pratapi cannot be held to be inspiring confidence. 10. According to Pratapi, she had gone to Karoli on the next day at about 3.00 PM and informed her mother Kani PW 7 about the incident. It is significant to point out that Pratapi has not deposed that she had told her mother that Ramsingh and Taru had poured acid on her husband. Kani (PW 7) has however deposed that Pratapi had told her that Ramsingh and Taru had poured acid on her husband and killed him. But this part of the statement of Kani does not appear to be true. Firstly because, according to this statement, Ratta had already died; whereas Pratapi has deposed that Ratta had died after she went back to her house in village Maruwas. Obviously, Pratapi could not tell her mother that Ratta was dead when he was alive at that time. Secondly, according to Kani, after she informed her son Kalu at Nathdwara, Kalu and Uda came to village Karoli and thereafter she sent both of them to village Maruwas. Had Kani known about the fact that Ramsingh and Taru had poured acid on Ratta, she would have certainly disclosed that fact to his son Kalu and son-in-law Uda. However, a reading of the statement of Uda (PW 3) makes it clear that Kani had not told them that who had poured acid on Ratta. What Uda has deposed is that his mother-in-law only told him that someone had poured acid on Ratta. He has given categorical statement that his mother-in-law had not told as to who had known as to who had poured acid on Ratta. What Uda has deposed is that his mother-in-law only told him that someone had poured acid on Ratta. He has given categorical statement that his mother-in-law had not told as to who had known as to who had poured acid on Ratta. Thus this part of statement of Kani that she had known through Pratapi that Ramsingh and Taru had poured acid on Ratta is not correct and she has given false statement in this regard. 11. It is therefore to be held that Pratapi herself did not know as to who was the proprietor of the crime and hence she was not in a position to tell Kani that Ramsingh and Taru poured acid on her husband. At the cost of repetition, it may be stated that Pratapi has not deposed in her statement that she had disclosed the names of the accused to her mother. This goes to show that Ratta had not made any dying declaration before Pratapi and she has given false statement implicating the accused in this case. 12. It is significant to point out that the FIR was lodged two days after the occurrence. Kalu (PW 1) has deposed that he, Uda and uncle Dola Ram had gone to lodge the FIR i Police Station Delwada, bug the Delwada SHO told them that the matter did not pertain to his jurisdiction and they should go to Dabok. According to him because it was night time, so he did not go to Dabok and went back to his house at Karoli and he went to Dabok police station on the next day. However, Uda PW-3 has not stated that they had gone to Dilwada Police station first. According to him they had gone straight away to Dabok police station. The prosecution has not examined Dola Ram. The explanation for delay in lodging the FIR obviously is not true. The delay as a matter of fact has not been explained on record. In a case where Ratta was in such a miserable condition as he had suffered 70 per cent burns and could not sleep through out night, it is rather surprising that FIR was not lodged to the police Station even when, according to the prosecution, Pratapi knew it that accused had thrown acid on Rattaji. In a case where Ratta was in such a miserable condition as he had suffered 70 per cent burns and could not sleep through out night, it is rather surprising that FIR was not lodged to the police Station even when, according to the prosecution, Pratapi knew it that accused had thrown acid on Rattaji. Not only this even she did not care to take her husband for treatment to the hospitals, which were situate just within one mile from her house. Natural conduct of Pratapi should have been that she first took steps for the treatment of her husband in nearby villages and then informed her mother. If she could leave Rattaji all alone in the house, in such a condition to go to Karoli, it was all the more necessary for her to have approached the doctors at Chidawa and Aklingji. This circumstance as a matter of tact goes to show that probably Pratapi herself was not at Maruwas on the day Rattaji suffered acid burn injuries. Otherwise, this could not be the conduct of Pratapi that she would not go to the hospital or to the police Station and she would also not approach the neighbours in the night and also in the morning, moreso when her cousin Goverdhan lal was living just infront of her house. Her explanation that she had gone to call them in the night, but they had slept and in the morning they had gone on their jobs, so she did not go to inform them, can hardly be believed. Her this statement that she had brought her husband from the place of occurrence to her house which was not less than one and half kilometer away by virtually bodily lifting him, cannot also be believed, moreso when acid burn injury marks were not noticed by the doctor on her fingers and palms. All these circumstances go to show that probably she was not there at Maruwas or she is concealing some facts. 13. From the above analysis, it is abundantly clear that Pratapi has belied herself when she has deposed that Ratta had gone in her presence alongwith accused Ramsingh and she had heard the cries of her husband and she had brought her husband from the place of occurrence to her house and that Rattaji had told her that Ramsingh and Taru had poured acid on him. The learned Trial Judge has erred in placing reliance on the testimony of Pratapi. 14. Now we proceed to discuss the evidence of recovery believed by the trial court. 15. Recovery of Clothes At The Disclosure Statement Of Accused Ram Singh :The recovery evidence is contained in the statements of PW-14 Surendra Singh, PW-6 Lal Singh and PW-9 Kesar Singh. PW-14 Surendra Singh has deposed that accused Ram Singh gave the information Ex.P-37 and thereafter he got the clothes recovered vide memo Ex.P-6. PW-6 Lal Singh and PW- 9 Kesar Singh both the motbirs have not supported the recovery of clothes at the instance of accused Ram Singh. Lal Singh (PW-6) has categorically stated that in his presence, nothing was recovered from the house of accused. Though he admitted his signatures on memo Ex.P-6, but his explanation is that, the police got the signatures on the pretext that a panchanama for the inspection of the house of Ram Singh was prepared. It is significant to point out that this witness has not been declared hostile. Kesar Singh (PW-9) has also not supported the recovery at the instance of accused and has been declared hostile. But nothing has been elicited from his cross-examination. Thus both the independent witnesses have not supported the recovery. Then it does not stand to reason that is the accused would take the half burnt shirt of the deceased and conceal it in his house. The accused was not fool to preserve the incriminating evidence against him. It appears that this evidence has been created by the Investigating Officer just to secure the conviction of the accused. 16. Recovery of Bottle At The Instance Of Accused Ram Singh :The information memo is Ex.P-34 and the recovery memo is Ex.P-24: The accused has denied the recovery, Bhana and Bhawan Lal are said to have been associated with the recovery of bottle. At the outset it may be stated that this recovery was from open field accessible to all. It is also pertinent to mention that Bhawar Lal PW-10 has not supported the recovery. Another motbir Bhana was not examined by the prosecution. He has been examined by the accused as DW-1. No question regarding this recovery has been asked to him by the prosecution. Thus the recovery is not supported by the independent witnesses. No reliance can be placed on such recovery which was from open place. 17. Another motbir Bhana was not examined by the prosecution. He has been examined by the accused as DW-1. No question regarding this recovery has been asked to him by the prosecution. Thus the recovery is not supported by the independent witnesses. No reliance can be placed on such recovery which was from open place. 17. Recovery of Baniyan At The Instance Of Accused Taru :The prosecution case is that accused Taru had given information Ex.P-36 and got his Baniyan recovered from his house. Accused has denied this recovery. Both the motbirs PW-6 Lal Singh and PW-9 Kesar Singh have not supported the recovery. Keshar Singh has been declared hostile, but Lal Singh has not been declared hostile. Thus his statement has not been challenged by the prosecution. The Baniyan is said to have the burn marks of acid. It does not stand to reason that the accused would preserve the incriminating circumstance against him. It seems that the Investigating Officer has shown this recovery in order to create evidence against the accused. 18. Recovery of Tumbler At The Instance Of Accused Taru :PW-10 Bhanwar Lal has not supported the recovery and the other motbir has not been examined. The accused has denied this recovery. When the recovery is not supported by the independent witnesses, it cannot be believed, moreso when it has been found hereunder that the Investigating Officer, in his anxiety to secure conviction, has narrated wrong facts in the memos. 19. It has come in the statement of Surendra Singh, I.O., that at the time of site inspection he had lifted a stone from the place of occurrence on which there was acid. A reading of the seizure memo Ex.P-20 reveals that when the stone was seized, it had liquid substance on it. Surendra Singh has clearly admitted in his cross-examination that there was no liquid substance on the stone and it was dry. When his attention was drawn towards the facts recorded in Ex.P-20, he admitted that he had incorrectly recorded that there was liquid substance on the stone. There was suggestion from the accused that the SHO got the acid poured at the place of occurrence on the stone and, therefore, he recorded this note. When his attention was drawn towards the facts recorded in Ex.P-20, he admitted that he had incorrectly recorded that there was liquid substance on the stone. There was suggestion from the accused that the SHO got the acid poured at the place of occurrence on the stone and, therefore, he recorded this note. Of course Surendra Singh has denied this suggestion, but his admitting that he wrongly narrated in the memo Ex.P-20 that there was liquid substance on the stone goes to show that he was making an attempt to create evidence in the case. The possibility that the SHO on coming to know through the medical evidence got sulphuric acid in the bottle and the Tumbler and also on the clothes and showed the recovery at the instance of accused, cannot be ruled out. 20. There is one more circumstance which needs to be discussed here. Accused were examined by Medical Officer on 27.11.88 and it was found that there was burn marks on their hands. Dr. Mahendra Gupta, PW-11 has deposed that such burn injuries could be sustained by coming into contact of caustic soda. In such circumstances, it cannot be said with certainty that accused had come in contact with sulphuric acid on the date of occurrence. According to the opinion of Doctor/Medical Officer, these injuries could be even of 7 days duration, therefore, it cannot be said with certainty that they were sustained by the accused at the time of occurrence. 21. There is no other evidence against the accused. It appears that as the accused had participated in the meeting some days back and they had threatened Ratta to avoid using skill else he would be turned out of the village, they have been roped in this case. It is well settled that accused cannot be convicted on the basis of suspicion only, however strong it may be. The case rested on circumstantial evidence only and the prosecution having failed to prove the circumstances by reliable evidence, the learned trial Judge has erred in convicting the accused. The conviction is not sustainable and the accused are entitled to acquittal. 22. Consequently, we accept this appeal set aside the conviction and sentence of the appellants and acquit them of the offence under section 302 read with Section 34 IPC. They are in custody. They shall be released forthwith, if not required in any other case. The conviction is not sustainable and the accused are entitled to acquittal. 22. Consequently, we accept this appeal set aside the conviction and sentence of the appellants and acquit them of the offence under section 302 read with Section 34 IPC. They are in custody. They shall be released forthwith, if not required in any other case. Fine if realised shall be refunded to them. *******