JUDGMENT 1. - Appellant Laxman Singh S/o Shanker Singh and his son Balveer Singh, Balwant Singh S/o Dulla Singh who is son-in-law of Laxman Singh's elder brother Mehar Singh were tried on charges Under section 302 and Section 302 Read With Section 34 of the Indian Penal Code for having caused the death of their neighbour Dr. Laxman Singh, medical practitioner. On trial Laxman Singh was convicted Under section 302 of the Indian Penal Code and was sentenced to undergo life imprisonment with Rs. 1000/- as fine, in default of payment of which he has to undergo a month's simple imprisonment. The other two accused persons were acquitted. This is the appeal by Laxman Singh against his conviction and the sentence.2-3. On 9.1.1990 at about 1.00 a.m. a report was lodged with the Police Station Ramsinghpur Distt. Ganganagar by Puran Singh S/o Sh. Chakar Singh to the effect that his elder brother Laxman Singh who was carrying on medical practice and resided with his family at Chak 6 A.P.D. for the last 5,7 years was not going on well with his neighbour accused Laxman Singh S/o Shanker Singh because accused Laxman Singh entertained a suspicion that Dr. Laxman Singh (Deceased) had illicit relations with daughter of accused Laxman's elder brother Mehar Singh. The enmity further deepened because a month prior to the incident, in-laws of Mehar Singh's daughter Pashi had come to take her home, but she refused to go and came to deceased Dr. Laxman Singh's house. It was further stated in the FIR that on 8.1.1990 at about 6.00 p.m. Puran Singh who resided at 48 G.B. went to his brother Dr. Laxman Singh (deceased) at 6. A.P.D. where Dr. Laxman Singh (deceased) told him that members of Laxman Singh's (accused) family threw stones on the house of Dr. Laxman Singh (deceased). At about 7.00 p.m. Laxman Singh (accused) called Dr. Laxman Singh (deceased) out in the courtyard and when Dr. Laxman Singh (deceased) went out, he saw Laxman Singh (accused) with a Sela in his hand, his son Balveer with a Gandasa, Kamail Singh with a Lathi and Balwant Singh who is the eider son-in-law of Mehar Singh with Kripan in his hand. All of them said that Dr. Laxman Singh (deceased) had spoiled their girl and they will, therefore, teach him a lesson. All of them said that Dr. Laxman Singh (deceased) had spoiled their girl and they will, therefore, teach him a lesson. Laxman Singh (accused) inflicted a Sela blow in the chest which resulted in blood coming out and Dr. Laxman Singh (deceased) fell down. Then Puran Singh, his sister's husband Desha Singh, Sister Pappi and brother's wife Prakash Kaur challenged the accused persons who ran away. All of them lifted Dr. Laxman Singh (deceased) and brought him in the house. He died after ten minutes.4. Thus, according to the FIR Puran Singh, the brother of the deceased who lodged the FIR was an eye-witness and Desha Singh, Pappi and Prakash Kaur were present on the spot when the assault took place or had reached immediately thereafter. Puran Singh was examined as PW 7 in the case. He reiterated the story given in the FIR and gave further details. He stated that he reached the house of the deceased at about 7.00 p.m. His brother's wife Prakash Kaur was cooking food. He himself, deceased Laxman Singh and their sister's husband Desha Singh were sitting in the room. Their sister Pappi was sitting in the Kitchen with Prakash Kaur. Deceased told him that the previous night Laxman Singh (accused), Kamail Singh, Balwant Singh and Balveer Singh had throw stones at the house of the deceased. When they were talking, accused Laxman Singh called deceased Laxman Singh out. At this Laxman Singh went out. Accused Laxman Singh scolded him that the deceased had spoiled his daughter and, therefore, he will teach him a lesson. Accused Laxman Singh hit with the Sela at the chest of deceased Laxman Singh and the deceased fell down. Puran Singh came out with Desha Singh, Prakash Kaur, Pappi. They saw Laxman Singh (accused), Balwant Singh, Kamail Singh and Balveer Singh there. Laxman Singh (accused) had a Sela, Balwant Singh had a Sword, Balveer Singh had a Gandasa and Kamail Singh had a Lathi. Puran Singh, Desha Singh, Prakash Kaur and Pappi all had seen accused Laxman Singh hitting with a Sela the deceased Laxman Singh according to this witness. The witness further stated that Balveer Singh, Balwant Singh and Kamail Singh shouted exhorting accused Laxman Singh to kill the deceased. He further stated that as soon as Laxman Singh (deceased) fell down, the accused persons ran away. The witness further stated that Balveer Singh, Balwant Singh and Kamail Singh shouted exhorting accused Laxman Singh to kill the deceased. He further stated that as soon as Laxman Singh (deceased) fell down, the accused persons ran away. He then searched for a Truck to take dead body to Redbaggi, the village where he resided. Initially he alone went to Redbaggi met Jaimal Singh Sarpanch and brother Kashmir Singh and narrated the whole story to them. Then Sarpanch Jaimal Singh, Brother Kashmir Singh and Puran Singh went to Ram-singhpur Police Station and a report was lodged. In his cross-examination he stated that he had reached his brother Laxman's place at about 6.30 p.m. and at that time his brother was not at home. Desha Singh had come to deceased Laxman's place 10 to 15 minutes after Puran Singh reached there. 10 minutes after Puran Singh reached his brother's house his brother Laxman returned to the house. Deceased Laxman Singh reached his house before Desha Singh reached there. He had come on a Motor Cycle and had come in after parking the Motor Cycle outside. He had just removed one of the socks when he was given a call by accused Laxman Singh. He had removed both the shoes, but had removed one of the socks only. He went away in that condition alone. He further stated that the accused Laxman Singh had given a call to his brother after 10 to 15 minutes of his brother's return to his house. The witness further stated that immediately after the death of his brother he went to village 6 A.P.D. in search of a truck. He went to Pandit Ramesh and then to Om, took Om's tractor and went driving that tractor to Redbaggi. They left the tractor of Om at Redbaggi and went to the Police Station in the Jeep of Jaimal Singh, Sarpanch. Then at about 2.00 a.m. they started from Police Station and reached Redbaggi at 2.30 a.m. All the 5, 6 persons who had gone to the Police Station with him returned in the police jeep to 6. A.P.D. The S.H.O. went back at about 3.00-4.00 a.m. to the Police Station. He again returned about 8.00 or 9.00 a.m. and remained there up to 12.00 Noon. The witness denied the suggestion that the SHO had taken in custody Laxman Singh accused and his son in the night itself. A.P.D. The S.H.O. went back at about 3.00-4.00 a.m. to the Police Station. He again returned about 8.00 or 9.00 a.m. and remained there up to 12.00 Noon. The witness denied the suggestion that the SHO had taken in custody Laxman Singh accused and his son in the night itself. The witness further deposed that when deceased Laxman Singh was lifted from the spot blood had spilled over in the way. He was put on the cot and the clothes lying on the cot were stained with blood. There were no blood stains on the cot and there were no blood stains on the clothes of any of the four persons who had lifted the deceased and shifted him to the cot inside the house. The scrapings of blood from the floor were taken according to this witness by the police. The witness denied the suggestion that the deceased was hit at some other place and the accused was falsely implicated due to enmity.5. PW 1 Desha Singh, the brother-in-law of the deceased and Puran Singh stated that he reached deceased's house at that fateful day at 6.00 p.m. and Puran Singh had arrived there 10 to 15 minutes earlier. Deceased Laxman Singh had gone out, but returned after some time. When they were sitting in the house at about 7.00 p.m. Laxman Singh accused called out deceased Laxman Singh. The deceased went out where four persons were there. He did not hear any noise, but had seen the assault. Puran Singh, Prakash Kaur and Pappi had also come out. According to this witness Laxman Singh accused had a Sela, Balwant Singh had a Kripan and Laxman Singh's two sons were also there, one had a Gandasa and the other had a Soti. In his cross-examination he said that when he alighted from the bus at 6 A.P.D. the darkness had already set in. When he reached the house of the deceased Sun had already set.The witness then said that it was a moonlit night and at 7.00 p.m. also there was no darkness. He further stated in the cross-examination that after being his the deceased had cried a loud and then they had come out. He further stated that when he came out the deceased had already fallen down. He also stated that the accused persons had run away after hitting with Sela and they had identified them. He further stated in the cross-examination that after being his the deceased had cried a loud and then they had come out. He further stated that when he came out the deceased had already fallen down. He also stated that the accused persons had run away after hitting with Sela and they had identified them. He denied that blood had spilled over and fallen on the floor. He also stated that all the four persons who had lifted the deceased and shifted him to cot inside the house did not have blood stains on their clothes. He also stated that from the place from where deceased was lifted by them to the place where he was put on the cot inside the house no blood fell on the floor. Strings of the cot were blood-stained. The cotton bed was also blood-stained. He further stated that Puran Singh had gone in search of a tractor at about 12.00 midnight and till then he was in the house only. He further stated that the accused Laxman Singh was caught by the police at about 2.30 a.m. in the same night when he was sleeping at his house. One of his sons was also caught at the same time. He also stated that once the police reached there they were there till the morning.6. PW 2 Smt. Prakash Kaur the widow of the deceased in her examination in chief stated that the deceased had gone out at 4.00 p.m. on that day on a visit to a patient. He returned at 4.30 p.m. and the incident took place at 7.00 p.m. According to her the accused called the deceased and hit him with a Sela, he did not say anything at that time. She also stated that after hearing the cries of her husband she rushed out and saw Sela in the hand of Laxman Singh, accused. She could not recognise any of the other accused persons. After the death of her husband villagers collected there. They deliberated upon the incident and then Puran Singh went to the Police Station to lodge a report. In her cross-examination she said that police had arrived on the spot at 2.00 a.m. The SHO was also there. They had apprehended accused Laxman Singh at 2.00 a.m. in that night only alongwith his two sons. They deliberated upon the incident and then Puran Singh went to the Police Station to lodge a report. In her cross-examination she said that police had arrived on the spot at 2.00 a.m. The SHO was also there. They had apprehended accused Laxman Singh at 2.00 a.m. in that night only alongwith his two sons. She also stated that Puran Singh had gone from the spot at 12.00 midnight. She further stated that Desha Singh had arrived immediately after the deceased had left his house at 4.00 p.m. She also stated that Puran Singh had come to their house 2, 3 days prior to the incident. She stated that the blood had not oozed out from the body of the deceased and it was only confined to his own clothes. She also stated that there was no blood on the bed or on the cot. She also stated that Puran Singh had gone on a bicycle to the Police Station and had come back on a bicycle. She emphatically denied the suggestion that Puran Singh had gone on a tractor. She further stated that by the time when she had come out her husband had already fallen down and accused Laxman Singh and run away with the Sela. She also stated that when Laxman Singh, accused was apprehended in the night the SHO had taken the Sela with him at the same time.7. PW 3 Smt. Pappi the sister of the deceased stated that when her husband, her two brothers were sitting in the house somebody gave a call from the outside and they thought that some patient had given the call. After hearing the noise of commotion when they came out they saw nothing. Laxman Singh, accused ran away after hitting the deceased with the Sela. Then she said when Laxman Singh hit with the Sela she had come in the middle of the door. She had named the four accused, but wrongly identified Balveer Singh as Khela Singh.In her cross-examination she denied that she had come with Puran Singh from Redbaggi to 6 A.P.D. She also stated that when they had lifted the deceased her clothes were stained with blood, her husband's shirt was also blood stained. However, she did not know whether clothes of Puran Singh and Prakash Kaur were blood stained or not. However, she did not know whether clothes of Puran Singh and Prakash Kaur were blood stained or not. She also stated that after hearing the noise of deceased Laxman Singh they had come out. When they came out of the door Laxman Singh had run away. She also stated that there were blood stains on the cot and the bed also and there was a trail of blood from the place from where the deceased was picked up and brought inside and shifted on the cot. She also stated that police had reached the spot at 2.00 a.m. in the night and had apprehended Laxman Singh and his two sons from their house in the night itself.8. PW 9 Rajendra Singh Investigating Officer proved Ex. P/13, Ex. P/18, Ex. P/19, Ex. P/20 the memoranda of arrest of the accused persons. According to which accused Laxman Singh was arrested at 4.00 p.m. on 11.1.1990, accused Kamail Singh was arrested at 5.30 p.m. on 10.1.1990, accused Balveer Singh was arrested at 4.30 p.m. on 14.2.1990 and accused Balwant Singh was arrested at 3.15 p.m. on 13.3.1990. The witness also proved the information P-21 Under section 27 of the Evidence Act given by accused Laxman Singh and the recovery of Sela vide Ex. P/23.9. Assessing the aforesaid crucial evidence what we feel is that the real story has not come out before the Court. The witnesses have contradicted each other on several points on all material aspects of the case. Puran Singh who lodged the FIR has given the time of his reaching the house of the deceased at 7.00 p.m. According to him Desha Singh his sister's husband had arrived there 10 to 15 minutes after he reached the house of the deceased. According to him his brother had gone out and had returned to the house within 15 minutes of the witness reaching the house of the deceased. PW 2 Smt. Prakash Kaur the wife of the deceased had stated that her husband had gone out on a visit at about 4.00 p.m. and had returned at 4.30 p.m. She also stated that Desha Singh had arrived between 4.00 and 4.30 p.m. on that date. She also stated that Puran Singh had come to their place 2, 3 days prior to the incident bringing alongwith him Pappi, her husband's sister. She also stated that Puran Singh had come to their place 2, 3 days prior to the incident bringing alongwith him Pappi, her husband's sister. According to Pappi she had come alone to the house of the deceased from Redbaggi and not with Puran Singh. PW 1 Desha Singh had stated that Puran Singh had reached 10 to 15 minutes prior to his arrival at the place of the deceased. At that time the deceased had gone out. According to Desha Singh he had reached the place of the deceased at 6.00 p.m. and after some time the deceased came home.10. On the point of blood stains also there are material contradictions in the statements of these witnesses. Desha Singh PW 1 deposed that there were no blood stains on the floor but none of the four persons who had lifted the deceased received blood stains on their clothes. According to him the blood stains were on the cot and the strings of the cot were stained with blood. The cotton bed was also blood stained. PW 2 Smt. Prakash Kaur deposed that blood stains were confined to the clothes of the deceased alone and the blood did not spill over any where else. She categorically denied that there were blood stains on the cot or the bed. PW 3 Smt. Pappi deposed that she had received blood stains on her clothes and Desha Singh had also received blood stains on his shirt. Puran Singh PW 7 deposed that there were blood stains on the clothes spread on the bed, but there was no blood stains on the cot itself. He further stated that the blood had spieled over on the floor and there was a trail of blood. He also deposed that police had taken scraping of blood also from the floor. PW 9 the Investigating Officer denied that there were any blood stains on the clothes of the witnesses. According to him if the clothes had blood stains he would have seized them. According to him there was no blood on the cot or the clothes spread over the cot or on the floor. He did not come across any blood on the floor or any trail of blood on the spot.11. On the point of departure of Puran Singh from the spot for lodging the report also there are several contradictions in the evidence. He did not come across any blood on the floor or any trail of blood on the spot.11. On the point of departure of Puran Singh from the spot for lodging the report also there are several contradictions in the evidence. According to Puran Singh PW 7 after the incident first thing was to search for a truck to transport the dead body. He went to Redbaggi after taking tractor from Om. He reached Om Prakash's place which is 5, 6 Murabbas away from 6 A.P.D. at 10.00 p.m. He was searching for a conveyance in 6. A.P.D. till 9.30 p.m. He reached Redbaggi at 11.00 p.m. and started from that place at 12 midnight. According to PW 1 Desha Singh after the incident he and Puran Singh did not go anywhere on motor cycle or on any other conveyance. He deposed that Puran Singh had gone in search of a tractor at about 12 midnight and till then he was at home i.e. at the place of the deceased. According to Desha Singh, Puran Singh left 6 A.P.D. after 12 midnight. PW 2 Prakash Kaur deposed that after the death of her husband villagers collected and deliberated and then Puran Singh went to the Police Station on a bicycle. She categorically stated that Puran Singh had left them at 12 midnight. PW 8 Kashmir Singh who is a witness of memoranda in the case and who is also related to the deceased as his first cousin stated that Puran Singh had reached Redbaggi at 9.00 p.m. and they stared from Redbaggi for the Police Station at about 10.00 or 11.00 p.m. and reached the Police Station at 11.30 p.m. or 12 midnight.12. On the point of arrest of the accused persons and recovery of weapons also there are contradictions in the evidence. According to prosecution case the accused persons were arrested on 11.1.1990, 10.1.1990, 14.2.1990, 13.3.1990. However, the witnesses have told a different tale. PW1 Desha Singh deposed that Laxman Singh and one of his sons was arrested at 2.30 a.m. in the same night when he was sleeping at his house. Prakash Kaur PW 2 stated that Laxman Singh accused and his two sons were arrested at about 2.00 a.m., in the same night when they were sleeping at their place. PW1 Desha Singh deposed that Laxman Singh and one of his sons was arrested at 2.30 a.m. in the same night when he was sleeping at his house. Prakash Kaur PW 2 stated that Laxman Singh accused and his two sons were arrested at about 2.00 a.m., in the same night when they were sleeping at their place. She also deposed that when Laxman Singh accused was apprehended Sela was taken away by the SHO on the same night. She also deposed that the entire Sela was of metal whereas in P-21, the information given by the accused Laxman Singh, he stated that the Sela had only an Iron head fitted on a Bambu. Ex. P/11 the memorandum of recovery and seizure also described the Sela as an Iron head fitted on Bambu. PW Pappi also stated that Laxman Singh and all the three boys were arrested from their house in the same night at about 2.00 a.m. Puran Singh and Kashmir Singh PW 7 and PW 8 supported the prosecution on this point obviously because they were the witnesses of the memoranda of arrest and memoranda of recovery. It is also curious that the Investigating Officer did not think of getting any independent witnesses to the memoranda, but relied on these two close relatives of the deceased for the memoranda of arrest and recovery of weapons. It is strange that for the memoranda prepared on different dates within a span of about two months the investigator could get only the same two interested witnesses and could not get any other independent witness. The charge of deliberate concoction of evidence in such circumstances cannot be lightly brushed aside.13. On the main incident of assault also there are several contradictions in the evidence of the witnesses examined as eye-witnesses. These have already been discussed above while dealing with the individual statements of witnesses. The totality of evidence does give credence to the defence version that the assault had taken place somewhere else and not outside the house of the deceased and the accused persons were implicated because of the enmity existing between the two parties because of the suspicion the deceased had illicit relations with Pashi the niece of the appellant or because of the suspicion that the accused persons might have done away with the deceased. Absence of blood on the spot, on the clothes of near relatives strengthen this defence. The prosecution has tried to explain that in the type of piercing injury received by the deceased it was possible that much blood would not ooze out. But even then it is not possible that there will be no blood stains on anyone if the incident had taken place in the manner in which it was brought out by the prosecution before the Court.14. In the aforesaid state of evidence we have no hesitation in coming to the conclusion that the learned trial Judge who has acquitted the co-accused on the same evidence, could not have convicted the appellant. The conviction and the sentence cannot, therefore, be upheld. The appeal is allowed. The conviction and the sentence is set aside. The appellant shall be released forthwith if his detention is not authorised by any other lawful order.Appeal Allowed. *******