Vijay v. State of Rajasthan — 1997 DIGILAW 1482 (RAJ)

Honble GUPTA, J.–This appeal is directed against the judgment passed by the learned Sessions Judge, Churu on 7th of July, 1979 in Session Case No. 14/78 whereby he convicted accused appellant Vijay under Sec. 302 IPC and sentenced him to undergo imprisonment for life and pay a fine of Rs. 100/-. (2). The gist of the prosecution case which has emerged during trial is that in the morning of 20th of March, 1978 a bundle tied in cloth was noticed lying in the `Bakhal of the house of the accused. On untying the bundle, it was found that Dharam- veer was there in injured condition. Dharamveer had number of injuries on his person but he was alive by that time. He was not wearing any garment below waist. He was unconscious. The prosecution case is that when Smt. Chandrawali, mother of the deceased, asked the accused as to why did he give beatings to her son, he replied that he had taken revenge of the slap given to him by Dharamveer. Imme- diately thereafter, Dharamveer was shifted to the hospital at Rajgarh where he succumbed to the injuries. The prosecution case further is that on the night intervening 19th of March and 20th of March, 1978 the accused was seen taking the bundle on his head by Amar Singh (PW 14), who immediately informed Begraj about it, who in his turn, informed other persons and all of them collected at the house of the accused where they found a bundle lying in the Bakhal of the house of the accused. The SHO PS Rajgarh was informed by the Medical Officer, Rajgarh that a person was admitted in the hospital with multiple injuries. The occurrence had taken place within the territorial jurisdiction of the Police Station, Hamirbas. It was a coincidence that when the medical officer informed the police, Ramgopal SHO PS Hamirbas was there at the Rajgarh police station. He, therefore, rushed to the hospital and recorded the statement of Ganpat who was present there. This statement of Ganpat was treated as the first information report and a case was registered under Sec. 307 IPC. On the death of Dharamveer Sec. 302 IPC was added. The police held the inquest, inspected the site and interrogated the witnesses. The autopsy was held by Dr. This statement of Ganpat was treated as the first information report and a case was registered under Sec. 307 IPC. On the death of Dharamveer Sec. 302 IPC was added. The police held the inquest, inspected the site and interrogated the witnesses. The autopsy was held by Dr. B.K. Gowda on 21st of March, 1978 on the informations of the accused on 30th March, 1978 incriminating articles i.e. blood stained lathi and the blood stained clothes were recovered. After the completion of the investigation, the police challenged the accused. (3). A charge under Section 302 IPC was framed against the accused, who plea- ded not guilty. The prosecution examined 14 witnesses. Accused in his statement under Sec. 313, Cr.P.C. denied accusation. He did not examine any person in defence. The learned Sessions Judge held that Dharamveers death was homicidal in nature. He further held that the accused was the person who had inflicted injuries to Dharamveer and had caused his death. He, therefore, convicted and sentenced him as stated above. (4). We have heard the arguments of Mr. Choudhary, learned counsel for the appellant and Mr. Mehta, learned Public Prosecutor for the State respondent and have perused the record of the case. (5). The trial Court has recorded the conviction of the appellant on the basis of the following circumstances. i. Dharamveer was found in a bundle lying in the house of the accused, and there were injuries on his person. ii. The accused admitted before the witnesses that he had caused injuries on Dharamveer. iii. The accused was seen taking the bundle in the night of 19th of March, 1978 from village Harpaloo Patram to village Harpaloo Ramdhan and on accosting he told Amar Singh that Dharamveer Master was in the bundle. iv. Clothes and lathis were recovered at the instance of the accused which were found to be stained with blood. v. There was motive for the accused to commit the crime as the deceased had slapped the accused. (6). The contention of Mr. Choudhary was that the evidence regarding the extra-judicial confession by the accused and taking of the bundle by the accused during night is not at all believable and the trial Court has erred in placing reliance on this evidence. (6). The contention of Mr. Choudhary was that the evidence regarding the extra-judicial confession by the accused and taking of the bundle by the accused during night is not at all believable and the trial Court has erred in placing reliance on this evidence. He took us through the statements of the witnesses to canvass that false links have been introduced by the investigating officer to secure the con- viction of the appellant. In this connection he drew out attention to this fact that the Investigating Officer tried to bind down the witnesses by getting their statements recorded under Sec. 164, Cr.P.C. He submitted that the trial Court has erred in believing the recovery at, the instance of the accused. He pointed out that the lathis were recovered from the open place accessible to all and sundry. About the recovery of the clothes he submitted that the `Bhakari from where the articles were recovered was without any roof and therefore, anybody could plant the articles in the Bhakari after the accused was arrested on 21st of March, 1978. In this connection, he invited our attention to this fact that the information was procured from the accused 8 days after his arrest. Mr. Choudhary further contended that there was absolutely no motive for the accused to cause the death of his cousin. According to him, there could not be any occasion for the accused to have taken the body of Dharamveer to his house if he had inflicted injuries to him at a distance of more than 550 `Pawandas from his house. He contended that the accused could not run the risk of taking the body to his house which would be a strong piece of evidence against him. Mr. Choudhary also pointed out that the link evidence of keeping the lathi and clothes intact has not been produced by the prosecution and therefore, the report of the Serologist should not be used as a connecting piece of evidence. Mr. Choudhary did not assail the finding of the trial Court that Dharamveer had died of the injuries recorded on the post mortem report Ex. P/17. (7). On the other hand, the contention of Mr. Mr. Choudhary did not assail the finding of the trial Court that Dharamveer had died of the injuries recorded on the post mortem report Ex. P/17. (7). On the other hand, the contention of Mr. Mehta was that there could not be any occasion for the witnesses to have falsely roped the accused in this case and that the very circumstance that the body was found lying in the house of the accused indicates that the accused was the person who had inflicted injuries to Dharamveer. (8). We have given the matter our thoughtful consideration. (9). The prosecution has not been able to produce direct evidence in this case. The case hinges on the circumstantial evidence. The Honble Supreme Court in the case of Sharad Birdichand vs. State of Maharashtra (1) enumerated five golden principles which are to be kept in view while deciding a case based on the circum- stantial evidence. The five principles are : (1) The circumstances should be fully established; (2) The fact so established should be consistent only with the hypothesis of the guilt of the accused i.e. they should not be explainable to any other hypothesis except that the accused is guilty; (3) The circumstances should be of conclusive nature and tendency; (4) They should exclude other possible hypothesis except the one to be proved : (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the inno- cence of the accused - must show that in all human probability - must have been done by the accused. (10). Keeping in view the above golden principles, we now proceed to examine the evidence produced on each circumstance. (11). The first and most important circumstance relied on by the prosecution, which alone could be sufficient to connect the accused with the crime, is that the accused was seen taking a bundle by Amar Singh (PW 14) during night time and on his asking the accused told that Dharamveer Master was there in the bundle. The trial Court has believed the statement of Amar Singh. The question for our consideration is whether the testimony of Amar Singh inspires confidence. (12). The trial Court has believed the statement of Amar Singh. The question for our consideration is whether the testimony of Amar Singh inspires confidence. (12). Amar Singh (PW 14) deposes that at about 4.30 a.m. on the barking of the dogs he went outside and he saw a man standing on the way and when he went near him and accosted him as to who was he, the man replied that he was Vijay. According to the witness, accused Vijay was there and he had a bundle with him and when he asked as to what was there in the bundle, the accused replied that Dharamveer Master was there in the bundle and when he asked as to why he made such a condition (of Dharamveer), the accused replied that he should not intervene otherwise he would also be dealt with in similar manner. he says that he was frightened and he rushed to the house of Begraj and informed him that Vijay was having a bundle in which Dharamveer was there and thereafter Begraj informed other persons such as Hari Singh, Harlal, Shubhram, and Ganpat. Amar Singh then says that he chased the accused, and as he reached the house of the accused he saw people standing there and the mother of Dharamveer was weeping sitting by the side of the bundle. The witness says that as he was to ply the bus, he went away from there. (13). The facts which have emerged in the cross examination of this witness, indicate that he was interrogated by the police for the first time on 10th of April, 1978 i.e. some 20 days after the occurrence. He first stated that he did not return from Hisar for 20 days but later on changed the version and told that he used to visit Rajgarh daily and he even met the SHO Rajgarh during that period. He further admits that on 22nd of March, 1978 he was at Hamirbas when the accused was arrested. The arrest memo Ex. P/6 also indicates that Amar Singh was present when the accused was arrested. Even Ramgopal, SHO admits that on 22nd of March, Amar Singh was present at Hamirbas. It is surprising that the witness who was the first link in the chain was not interrogated by the SHO though he was available to him. The arrest memo Ex. P/6 also indicates that Amar Singh was present when the accused was arrested. Even Ramgopal, SHO admits that on 22nd of March, Amar Singh was present at Hamirbas. It is surprising that the witness who was the first link in the chain was not interrogated by the SHO though he was available to him. It is to be noticed that Amar Singh admits that he met daily Begraj and Ganpat in his village for three days. The explanation of Ramgopal, I.O. that he had no time on 22nd of March to interrogate Amar Singh and therefore, he did not record his statement speaks a lot on the investigation. Could there be any other more important work then the investigation of the murder case and that too the interrogation of a witness who had first come to know abut the accused taking Dharamveer in a bundle to his house. The explanation of Ramgopal that he had to go for giving evidence in some case or that there was inspection of the DIG and therefore he could not find time, hardly explains the delay in interrogating the witness. (14). It is significant to point out that in the statement Ex. P/1 of Ganpat which was treated as the FIR, minute details were given yet the name of Amar Singh was not mentioned therein. This clearly indicates that Amar Singh had not seen anything as claimed by him but he was introduced by the Investigating Officer at the very late stage of the investigation. It is significant to point out that according to Amar Singh he was present when the witnesses had collected at the house of the accused and they had seen the bundle, yet the witness chose to keep mum. He did not tell anything to the persons collected there that he had seen the accused taking the bundle and had even accosted him and the accused had replied that he was taking Dharamveer in the bundle. The conduct of the witness in keeping mum at that time was most unnatural. This clearly indicates that he had infact not seen anything and, has given false statement that he had even conversation with the accused. The conduct of the witness in keeping mum at that time was most unnatural. This clearly indicates that he had infact not seen anything and, has given false statement that he had even conversation with the accused. It is also relevant to state that the important fact coming in his statement that when he asked the accused as to why did he make such a condition of Dharamveer, the latter replied that he (witness) should not try to intervene otherwise he would also be dealt with in the same manner, does not find place in his statement recorded under Sec. 161 or 164 Cr.P.C. It is further to be noticed that the witness admits that he did not shout even when he was informed by the accused that Dharamveer Master was there in the bundle. Such an abnormal conduct could not be there of the witness if he had seen the accused taking the bundle. It is also relevant to state that according to the witness when he accosted the accused, he took off the bundle from his head and placed the same on the ground, and he did not try to run away. Both the things are unbelievable. It cannot be believed that the accused would disclose his identity and would not run away from the place after Amar Singh saw him. It is also not understood as to how the accused who was all alone, could lift the bundle and take the same to his house. Dharamveer was not a child. He was man, 25 years of age and the facts mentioned in the post mortem report Ex. P/7 show that he was fairly built person. It cannot be believed that a single man who is almost of the same age would first carry the bundle on his head and then would take off the bundle, and would again lift all alone from the ground. In our considered opinion, the learned trial Judge has obviously fallen into error when he placed reliance on the testimony of this witness. Thus, the first circumstance relied on by the trial Court does not stand proved. (15). The second circumstance which the prosecution had relied on was that the two persons Sohanlal (PW 8) and Banwari (PW 9) had seen the accused taking the bundle and even Banwari had helped the accused in lifting the bundle from the ground. Thus, the first circumstance relied on by the trial Court does not stand proved. (15). The second circumstance which the prosecution had relied on was that the two persons Sohanlal (PW 8) and Banwari (PW 9) had seen the accused taking the bundle and even Banwari had helped the accused in lifting the bundle from the ground. However, both the witnesses have turned hostile. They deny to have seen the accused taking any bundle, or that Banwari helped him to lift the bundle from the ground. These witnesses have been confronted with their statements recorded by the Magistrate under Sec. 164, Cr.P.C. They admit to have given same part of those statements but at the same time they explain that they had to give such state- ments at the pressure of the police. Banwari deposes that he was kept at the police station for three days and was asked by the SHO that either he should give statement as directed by him otherwise he would be roped in the case. Sohan (PW 8) also deposes that he was detained by the police for three days for interrogation. He also says that when his statement was recorded, SHO was present before the Magistrate. The trial Court has rightly held that this circumstance against the accused is not proved on record that he was seen carrying some bundle from village Harpaloo Patram or Harpaloo Kushla or even in the area of village Harpaloo Ramdhan. (16). The third circumstance relied on by the prosecution was the confession of the accused before the persons collected at his house. The trial Court has believed the evidence produced in this regard. (17). The witnesses, through whom the confession is coming are Mrs. Chandrawali (PW 2) Ramphal (PW 7) and Hari Singh (PW 3). Chandrawali (PW 2) deposes that her son Dharamveer had gone to the field on the previous evening after taking meals and that he did not return in the night and at 5 a.m. Subhram awakened her and told that Vijay accused had killed Dharamveer and had taken him to his house. She then says that she went to the house of Vijay and at that time Jeevani wife of Amilal and her son Ramphal were also with her and that Jeevani, stated that Vijay had killed Dharamveer and had taken him in his house. She then says that she went to the house of Vijay and at that time Jeevani wife of Amilal and her son Ramphal were also with her and that Jeevani, stated that Vijay had killed Dharamveer and had taken him in his house. She says that when she reached the house of the accused, she found the accused standing there having a lathi in his hand and when she asked as to why did he kill her son, Vijay replied that he had taken revenge of the slap given to him. She says that at that time Ganpat, Hari Singh and Begraj had also reached there. PW 7 Ramphal deposes that at about 5 a.m. Jeevani and Subhram went to his house and told that Vijay had killed Dharamveer and a bundle was lying in his house, on which he and his mother went to the house of the accused where the accused was standing having a lathi in his hand and when his mother asked as to why did he kill Dharamveer, he (accused) replied that he was slapped and therefore, he had taken revenge. PW 3, Hari Singh deposes that on his asking the accused had replied that he had taken revenge of the slap he had suffered. (18). The point for consideration is whether the statements of the three witnesses on this point inspire confidence. Chandrawali (PW 2) deposes that when she asked the accused Hari Singh, Ganpat and Begraj were present. Ramphal (PW 7) also states that when the accused replied to the query made by his mother, Begraj, Ganpat and jeevani were present thee. However, Ganpat (PW 1), Begraj (PW 11) and even Hari Singh (PW 3) do not depose that Smt. Chandrawali had asked anything to the accused and the accused had replied to have inflicted injuries to Dharamveer. If the talk had taken place in the presence of Ganpat, Hari Singh and Begraj, there could not be any reason for the omission of this important fact in their statements. It is relevant to state that Ganpat, who lodged the first information report at 2.30 p.m. did not mention this important fact in the report Ex. P/1. If the talk had taken place in the presence of Ganpat, Hari Singh and Begraj, there could not be any reason for the omission of this important fact in their statements. It is relevant to state that Ganpat, who lodged the first information report at 2.30 p.m. did not mention this important fact in the report Ex. P/1. The omission of the fact which obviously was of great significance indicates that no such talk had taken place at the house of the accused in which the accused told to have taken revenge of the slap he had suffered. It is relevant to state that Chandrawali was interrogated for the first time on 30th of March, 1978. It is obvious that this false evidence was created long after the investigation started. (19). Hari Singh (PW 3) though does not say that in his presence Chandrawali had talked to the accused and the accused had admitted that he had caused the injuries to Dharamveer, deposes that he himself had asked the accused and he told him that he had taken the revenge of the slap. The question is whether this part of the statement of Hari Singh carries conviction. Hari Singh states that when he asked the accused, and the accused gave a reply, Chandrawali, Ramphal and Ganpat were also present. Ganpat, Ramphal and Chandrawali however nowhere state that in their presence Hari Singh had asked any question to the accused and the accused had replied to him that he had taken revenge of the slap. It is to be noticed that this fact also does not find place in the first information report Ex. P/1 though according to Hari Singh, Ganpat was present at the time the talk took place. Ganpat though did not even state about this fact in his examination in chief but made improvement when he was cross examined. The explanation of Ganpat that he forgot to mention this fact in the FIR Ex. P/1 is difficult to be believed. As already stated, the statement of Ganpat was recorded in detail. Could Ganpat forget such an important fact which had great bearing on the case while lodging the first information report Ex. P/1. We think, not. On the contrary, in the statement of Ex.P/1 it is stated that the accused was standing there having a lathi in his hand but he did not utter any word. Could Ganpat forget such an important fact which had great bearing on the case while lodging the first information report Ex. P/1. We think, not. On the contrary, in the statement of Ex.P/1 it is stated that the accused was standing there having a lathi in his hand but he did not utter any word. When the attention of the witness was drawn to this fact in the FIR, he stated that by these words he meant that the accused did not talk to him. The explanation can hardly be believed. The fact that in the FIR Ex. P/1 it was stated that the accused did not utter a word goes to show that the accused never told Hari Singh that he had taken revenge of the slap. In our opinion, the trial Court did not properly consider the effect of the omission of this important fact in the FIR and has committed error in relying on this part of the circumstantial evidence. (20). The next circumstance relied on by the prosecution was that the accused was standing in his `Bhakhal having a lathi in his hand near the bundle. All the wit- nesses depose that the accused was standing there in the `Bakhal having lathi in his hand. But, in our opinion, this is not a circumstance which can be used against the accused. There is no evidence that the accused prevented anyone from untying the bundle or from taking Dharamveer to the hospital. There is also no evidence to this effect that the accused was in such a mood which indicated that he was happy over the incident. The possibility that on seeing the bundle lying in his `Bakhal, the accused suspected some trouble and he therefore kept a lathi in his hand, is not ruled out. The trial Court has rightly not considered this a circumstance against the accused. (21). The next circumstance against the accused relied on by the trial Court is that lathis and clothes, recovered at the instance of the accused, were found to be stained with human blood. PW 12 Ramgopal deposes that he had arrested the accused on 22nd of March, 1978 and on 30th of March, 1978 the accused gave him informations Ex. (21). The next circumstance against the accused relied on by the trial Court is that lathis and clothes, recovered at the instance of the accused, were found to be stained with human blood. PW 12 Ramgopal deposes that he had arrested the accused on 22nd of March, 1978 and on 30th of March, 1978 the accused gave him informations Ex. P/19 and P/20 and thereafter he recovered the pieces of a lathi and one full lathi from the `Bada of Ratiram and `Coat, Jersey, `Dhoti and a `Chadar from the house of the accused under recovery memos Ex. P/19 & P/20. Hari Singh (PW 3) and Begraj (PW 11) are the `Motbirs of the recovery memos. The recovered lathis and clothes were sent to the Forensic Science Laboratory, from where the Report Ex. P/21 was received mentioning that the pieces of lathi, `Chadar, `Jersy, `Coat and `Dhoti were stained with blood. These items were forwarded to the Serologist, who vide his report Ex. P/22 opined that these items were stained with human blood. The group of the blood, however, could not be known on any of the items. The accused has denied the recovery at his instance. (22). The contention of Mr. Choudhary was that the investigating officer has planted the recovery 8 days after his arrest. Regarding recovery of the pieces of lathi, he pointed out that it was from open place and regarding the recoveries of the clothes his contention was two fold: (i) the recovery was from the `Bhakari which did not have roof over it and thus anybody could plant the items there, and (ii) that the prosecution has not led evidence to prove that the clothes belonged to the accused. (23). The late information by the accused after his arrest by itself cannot be a circumstance to doubt the recovery. However, there are circumstances on record on which, it can be said that the recovery of the items does not connect the accused with the crime. Pieces of lathis were recovered from the `Bada of Ratiram. Obviously the pieces of the lathis were recovered from an open place which was accessible to all and sundry. Ramgopal (PW 12) was asked pointed question as to whether the pieces of the lathi were lying underneath the earth or were in the `Bad itself. He avoided the question by saying that he did not remember. Obviously the pieces of the lathis were recovered from an open place which was accessible to all and sundry. Ramgopal (PW 12) was asked pointed question as to whether the pieces of the lathi were lying underneath the earth or were in the `Bad itself. He avoided the question by saying that he did not remember. Then, a further question was asked to him whether the accused took out lathi pieces one by one or he took out all the three pieces together. His memory again failed. A further question was asked to him whether the recovery of the lathis was made first or the clothes were recovered first and thereafter the lathis were recovered. His reply was that he did not remember. Thus, whatever question, to test his evidence was put to the witness, his answer was that he did not remember. Hari Singh (PW 3) Motbir of the recovery memo deposes that when they reached the `Bada of Ratiram, the accused picked up three pieces of the lathi and handedover to the police. According to him, some `Bheetke (dried sticks of which `Bad is raised) were lying over the pieces. It is, thus, obvious that the lathi pieces were lying at open place and could be seen by anyone. Begraj (PW 11) another `Motbir also says that these pieces of lathi were lying on the ground and some `Bheetkas were lying thereon. The evidence clearly indicates that the lathi pieces were not lying in concealed position and they could be seen by all and sundry. In our opinion, by the recovery of the lathi pieces from such a place, it cannot be inferred that the accused had placed them there. (24). Regarding the recovery of the clothes, the statement of PW 12 Ramgopal is that the accused had told him that the `Coat, Jersey and `Dhoti which he was wearing at the time of occurrence and the `Chadar in which he had bundled Dharamveer had stained with blood which he had concealed in his `Bhakari. The information Ex. P/20 can be split in the following parts : (i) At the time of occurrence his clothes had smeared with blood. (ii) He was wearing `Coat, Jersey and `Dhoti at the time of occurrence. (iii) He had bundled Dharamveer in the `Chadar. (iv) He had concealed these items in the fodder in `Bhakari. (25). The information Ex. P/20 can be split in the following parts : (i) At the time of occurrence his clothes had smeared with blood. (ii) He was wearing `Coat, Jersey and `Dhoti at the time of occurrence. (iii) He had bundled Dharamveer in the `Chadar. (iv) He had concealed these items in the fodder in `Bhakari. (25). It is settled law that under Sec. 27 of the Evidence Act only that part of the statement is admissible which has direct bearing with the fact discovered. The past history is not admissible in evidence. If any authority is needed on the point, a mention may be made of the cases of Prabhu vs. U.P. (2) and Mohd. Inayatullah vs. State of Maharashtra (3). (26). In the case of Mohd. Inayatullah (supra) their Lordships observed as follows : ``Sec. 27 is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Sec. 24 also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact at must be deposed to. The third is that at the time of the receipt of the informa- tion the accused must be in police custody. The last but the most important condition is that only ``so much of the information as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word ``distinctly means ``directly, indubitably ``strictly, ``unmistakably. The word has been advisedly used to limit and define the scope of the proveable information. The phrase ``distinctly relates ``to the fact thereby discovered (sic) (and?) is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The word has been advisedly used to limit and define the scope of the proveable information. The phrase ``distinctly relates ``to the fact thereby discovered (sic) (and?) is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. (27). In the case of Prabhu (supra) it was observed that the statement that the weapon with which the murder was committed is not a statement which leads to the discovery within the meaning of Sec.27 of the Evidence Act. It was further obser- ved that the alleged statement of the accused that the blood stained shirt and `Dhoti (of that case) belonged to him, was also not a statement which led to any discovery within the meaning of Sec.27 of the Evidence Act. Their Lordships observed as follows:- ``It is fallacious to treat `fact discovered within Sec. 27 as equivalent to the object produced; the fact discovered embraces the place for which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to the fact. It is therefore wrong to admit in evidence the alleged statement that the axe had been used to commit murder or the statement that the blood stained shirt and dhoti were his. (28). In view of the dictum of the Apex Court, in the instant case this part of the statement is not admissible that at the time of occurrence the clothes of the accused were smeared with blood or that he was wearing `Coat, Jersey and `Dhoti at the time of occurrence or that he had tied Dharamveer in the `Chadar. All these facts have no direct connection with the fact discovered. (29). Now remains this part of the information only that ``I placed the clothes underneath the fodder in the ``Bhakari. All these facts have no direct connection with the fact discovered. (29). Now remains this part of the information only that ``I placed the clothes underneath the fodder in the ``Bhakari. As already stated, the accused has denied the recovery. It has come in evidence in unequivocal terms that the `Bhakari from where the clothes were recovered was not having roof over it. It may be that the `Bhakari was situate inside the room of the accused. Thus, the entry of the `Bhakari was of course from the room but it was open to sky. The contention of Mr. Choudhary that anybody else could plant these clothes in the `Bhakari from outside during the period of 8 days, the accused remained in custody, cannot be lightly brushed aside. It is significant to point out that the prosecution has not made any attempt to prove that the clothes recovered belonged to the accused or that he was seen wearing those clothes in the night of occurrence. As a matter of fact, there could not be an opportunity for the accused to have concealed the clothes in the night of occurrence. The prosecution evidence indicates that the accused was seen at point ``E of site plan Ex. P/5(3) keeping the bundle of Dharamveer on the ground. Thus ``E point was 140 `Pawandas away from the point ``F where the body was found lying at about 5 a.m. According to Amar Singh, he immediately informed his neighbour Begraj and when he reached his house, mother of Dharamveer was weeping there. If this statement is believed, Chandrawali had already received information about the murder before 5 a.m. and she therefore reached the house of the accused at about 5 a.m. Some time was bound to have been taken by the accused in taking the bundle to his house. When the persons started pouring in the house there could not be any opportunity to the accused to change the clothes. (30). Moreover Ramgopal could not say as to what time he had reached the house of the accused to make the recovery. As already stated, he could not state as to whether the clothes were recovered first or the lathi pieces were recovered first. He could not say as to whether the `Bhakari from where the clothes were recovered was locked or not. As already stated, he could not state as to whether the clothes were recovered first or the lathi pieces were recovered first. He could not say as to whether the `Bhakari from where the clothes were recovered was locked or not. The SHO could not say as to what was the level of the `Bhakari in comparison to the floor of the room. He could not give even approximate dimension of the `Bhakari. These facts indicate that as a matter of fact no recovery was made from the `Bhakari by Ramgopal and this evidence has been created just to implicate the accused in the case. It is relevant to state that it is established on record that the I.O. had introduced false links in the case to connect him with the crime, viz. he introduced Amar Singh as an eye witness 20 days after the start of the investigation. It has also been found that the extra judicial confession which was not there when the FIR was lodged, was also introduced. Thus, the investigation was not fair and the contention of the learned counsel for the appellant, that such investigating officer could plant false recovery, cannot be lightly brushed aside. (31). Further more, the prosecution has also not led the link evidence that after the articles were recovered, they were kept in safe custody. Neither the Incharge Malkhana nor the police official who had taken the items to the Forensic Science Laboratory has been examined. In the absence of link evidence, more so when the conduct of the SHO was not above board, the reports Ex. P/21 and P/22 cannot be given much weight. (32). In view of the above discussion, the recovery of the lathi pieces and the recovery of the clothes does not connect the accused with the crime. (33). There could not be any motive for the accused to have caused injuries to Dharamveer and then take him to his house after tying him in a `Chadar. The motive said to be is that the deceased had slapped once to the accused but no evidence of that incident has been led. The evidence, on this point, is that the alle- ged extra judicial confession of the accused which we have already disbelieved. On the contrary, there is clear evidence on record that the relations of the deceased and the accused were not bad. The evidence, on this point, is that the alle- ged extra judicial confession of the accused which we have already disbelieved. On the contrary, there is clear evidence on record that the relations of the deceased and the accused were not bad. PW 11 Begraj says in unequivocal terms that there was no hostility between the accused and the deceased. Even the mother of the deceased Chandrawali, or his brother Ramphal have not stated that there was any incident between the accused and the deceased which could give cause to the accused to commit such a ghastly murder. (34). Now the only circumstance against the accused which remains to be discussed is that Dharamveer was found in a bundle which was lying in the `Bhakal of the accused. Certainly when body is found in the house of a person needle of suspicion immediately goes towards him, but there is clear evidence on record that `Bhakal where the bundle was lying, was open place. There was no gate for going to the `Bhakal. Anybody could go and place the bundle there. The learned trial Court has observed that why other person could take the bundle and place in the house of the accused, but then it is also not understood as to why the accused after causing injuries to Dharamveer in the jungle would take him to his house. He could not be a fool as to show it all and sundry that he had caused injuries to the deceased. It is not stated that the accused was mentally deranged person. It is also not the case for the prosecution that the accused ever had expressed his intention to kill Dharamveer or after the incident he had boasted that he had done so. It cannot be believed that the accused, who is said to have caused injuries during night time, in the veil of secrecy, would take Dharamveer to his house by putting him on his head and keep him in his `Bhakhal. It is to be noticed that the distance from the place where the occurrence of beating had taken place was about 600 `Pawandas away from the house of the accused. One `Pawandas is generally of two steps and one step is equivalent to about 1-1/2 ft. Thus, the distance amounts to more than 1800 ft. i.e. about half a kilometer. It is to be noticed that the distance from the place where the occurrence of beating had taken place was about 600 `Pawandas away from the house of the accused. One `Pawandas is generally of two steps and one step is equivalent to about 1-1/2 ft. Thus, the distance amounts to more than 1800 ft. i.e. about half a kilometer. It is not understood as to what was the impelling circumstances before the accused to have burdened himself with the weight of Dharamveer for such a long distance. (35). It is also to be noted that no blood was found at the place where the occurrence of beating is said to have taken place. Ramgopal (PW 12) admits that he did not take blood stained soil from any of the points where he found some marks of movement. He of course says that he had seen some blood lying in the area of 1 ft. at point `A of the site plan (Ex. 5(1). The SHO did not lift that blood stai- ned soil which indicates that as a matter of fact there was no blood lying anywhere. We have already disbelieved Amar Singh who says that he had seen the accused taking the bundle from that route. This shows that the occurrence of beating had taken place somewhere else and the assailant in order to save his skin managed the placing of the dead body in the `Bakhal of the accused. It is also significant to point out that when the bundle was opened, Dharamveer was not wearing anything below waist i.e. he was naked. This circumstance shows that some occurrence regarding sex had taken place and that is why beating was given to Dharamveer and then he was tied in the `Chadar and dropped in the `Bhakal during night time. (36). Taking all the facts and circumstances into consideration, we are cons- trained to remark that the prosecution has failed to bring home the guilt of the accused. (36). Taking all the facts and circumstances into consideration, we are cons- trained to remark that the prosecution has failed to bring home the guilt of the accused. The circumstance that Dharamveers bundle was lying in the `Bhakal of the accused might lead us to presume that the accused could be the assailant but when the other hypothesis is also possible, it is not safe to convict the accused on the basis of this circumstance, more so, when the brother of the accused also resi- ded in the same `Bhakal and Jeevani who had informed Chandrawali about the presence of Dharamveer in the bundle in the `Bhakal has not been examined by the prosecution. It has come in the statement of Subhram (PW 4) that the relations of Jeevani and accused were not cordial and they were not even on speaking terms. As such, this possibility is not ruled out that an attempt was made to fasten the lia- bility on the accused by Jeevani, wife of Amilal. (37). The trial Court has committed grave error in convicting the appellant on the basis of the evidence produced in the case. At any rate, the case is not free from doubt and the benefit of doubt goes to the accused. (38). For the reasons stated above, we accept the appeal, set aside the convic- tion and acquit the accused appellant under Sec. 302 IPC. He is on bail. He shall not surrender to the bail bonds which stand cancelled.