JUDGMENT 1. - Heard the learned counsel for the appellant and the learned Public Prosecutor. 2. This appeal is directed against the judgment dated 28th May, 1981 passed by the learned Sessions Judge, Merta in Sessions Case No. 37/79, State v. Ramchandra . By the aforesaid judgment the appellant who was tried by the learned Sessions Judge on the charge punishable under Section 302 of the Indian Penal Code was convicted under Section 302 of the Indian Penal Code and was sentenced to under-go imprisonment for life and to pay fine of Rs. 50 and to under-go-further rigorous imprisonment for 2 months for default in payment of fine. 3. The facts of the case may be briefly summarised as under: On 4th January, 1979 at about 4.00 PM. Suja Ram gave oral information at Police Station Padukala District Nagaur about the murder of Loona. The information given by him was recorded on E.P-7. In this information Suja Ram had stated that on Tuesday (2nd January, 1979) his nephew Loona aged 20 years who was hard of hearing went to the forest for tending the herd of sheep. On the same day after sometime Ugma who is the brother of the complainant also went to the forest to tend his herd of sheep. At about 12.00 A.M. when Ugma went towards Loona he saw that in the field of Ramsukh, Loona was lying in seriously injured condition. When Ugma enquired from him Loona told Ugma that he had been injured by Ramchandra and at that time Ramchandra was also present near Loona. Loona had injuries on his hands. Legs and neck and that his wounds were bleeding. Chotudi and her younger sister were also in the neighbourhood of the scene of ocpurrence. Above fact was communicated by Ugma to the mother of the complainant. On receiving the information about the incident complainant's mother and Loona's mother went to the spot. By that time Loona had breathed his last. The two ladies remained sitting near the body of Loona. The complainant was given information about the incident by Dhanji Darji. The complainant then went to the place of occurrence and saw that dead body of Loona was lying in the field of Ramsukh and he had injuries on his hands, legs and neck and they had been caused with an axe and much of blood had spilt there. The complainant was given information about the incident by Dhanji Darji. The complainant then went to the place of occurrence and saw that dead body of Loona was lying in the field of Ramsukh and he had injuries on his hands, legs and neck and they had been caused with an axe and much of blood had spilt there. It was further stated in the First information Report Ex.R 7 that the dead body of Loona was taken to his father's house in the trolley of a tractor. Before the removal of dead body from the place of occurrence the dead body was seen by a doctor of Bagad. It was also alleged in the First Information Report that when the complainant's father started from the house on his tractor with a view to lodge a First Information Report at Police station, about 5-10 persons who were relatives of Ramchandra stood in front of the tractor and told him that he could proceed further only by killing them. Consequently complainant's father could not go to the Police Station and the relatives of Ramchandra who included Bharmal, Nathu, Hema, Pusa and Dhana took away the dead body of Loona and consigned the same to flames against the will of the father of the deceased and his relatives. It was also stated in the First Information Report that the body of Loona was consigned to flames after sun-set and that the complainant was prevented from going to the Police Station. 4. On the-basis of the First Information Report lodged by Suja Ram the Police registered a case under sections 302 and 201 of the Indian Penal Code and commenced investigation. During investigation the Police arrested the accused. It is alleged that during investigation the accused gave information about the axe with which he assaulted the deceased and in consequence of that information an axe was recovered by the Investigating Officer and was sealed then and there. Blood smeared soil and control soil were also taken from the place of occurrence and they were also sealed. It does not appear that the axe recovered by the Police had been sent to the Forensic Science Laboratory for examination. 5. Blood smeared soil and control soil were also taken from the place of occurrence and they were also sealed. It does not appear that the axe recovered by the Police had been sent to the Forensic Science Laboratory for examination. 5. After completing investigation the Police submitted a charge-sheet under Section 173 of the Criminal Procedure Code in the Court of learned Judicial Magistrate, Merta who committed the case to the Court of learned District and Sessions Judge, Merta. 6. Accused Ramchandra was charged under Sections 302 and 201 of the Indian Penal Code. He pleaded not guilty to the charge. 7. The prosecution examined Dr. Hari Prakash (PW-1), Ghisu Lal (PW-2), Ugma Ram (PW-3), Muthra (PW-4), Thana (PW-5), Suja (PW-6), Pushkardutt (PW-7) and Umaid Singh (PW-8) in support of the prosecution case. The accused was examined under Section 313 of the Criminal Procedure Code. He examined Jora Ram (DW-1), Chotudi (DW-2) and Tulsa Ram (DW-3) in defence. 8. After considering the evidence adduced by both the parties and hearing the arguments the learned Sessions Judge held that the charge against the accused had been established beyond reasonable doubt. 9. He, therefore, convicted Ramchandra under Section 302 of the Indian Penal Code and sentenced him as mentioned above. 10. The learned counsel for the appellant has submitted that in this case there is no reliable evidence to prove the offence of murder against the appellant who at the time of commission of offence was only 18 years old and as admitted by the prosecution witnesses themselves, there was no enimity between the accused and the deceased. It is also submitted by him that the dead body of Loona was consigned to flames, therefore, it could not be subjected to post-mortem examination. Therefore, there is no reliable evidence to show what was the cause of his death, what kind of injuries he had on his body and how those injuries had been caused and what was the nature of those injuries. And in the absence of such evidence the statements of prosecution witnesses that the injuries which they had seen had been caused with an axe and not by falling from the Khejadli as proved by defence cannot be held to be reliable. And in the absence of such evidence the statements of prosecution witnesses that the injuries which they had seen had been caused with an axe and not by falling from the Khejadli as proved by defence cannot be held to be reliable. It is also submitted by him that in this case the prosecution has come with the story that the complainant's and the deceased's father could not lodge the report because they were obstructed by the relatives of the accused and that the body of the deceased was consigned to flames against the wishes of complainant's father and relatives. But those persons who are alleged to be responsible for preventing them from lodging of the First Information Report and forcibly consigning the body of the deceased to flames have not been prosecuted and, therefore, the allegation made by the prosecution in this behalf should be discarded as untrue. Regarding the statement of Ugma Ram (PW-3) who is the solitary eye witness of the occurrence the learned counsel for the appellant has submitted that his evidence is unreliable and is not only unnatural, it is also shaken by the contradictions between the statements made in the Court and the statement recorded by the Police under section 161 of the Criminal Procedure Code. Another submission made by the learned counsel for the appellant is that in this case there is positive evidence of defence witnesses Jora Ram (DW-1), and chotudi (DW-2) who have stated on oath that Loona fell from a khejadli tree and died on account of the injuries received by that fall and the learned Sessions Judge was not justified in discarding the evidence of these two eye witnesses because their testimony has not been shown to be improbable or completely false. The learned counsel for the appellant has, therefore, submitted that the appeal be allowed and the appellant be acquitted of the charge under Section 302 of the Indian Penal Code. 11. The learned Public Prosecutor has supported the judgment of the learned Sessions Judge and prayed for dismissal of the appeal. 12. Out of eight witnesses Ugma Ram (PW-3) is the solitary eye witness of the occurrence. He has stated that on the day of occurrence at the time of sun-rise Loona went to the forest with his herd of sheep. The learned Public Prosecutor has supported the judgment of the learned Sessions Judge and prayed for dismissal of the appeal. 12. Out of eight witnesses Ugma Ram (PW-3) is the solitary eye witness of the occurrence. He has stated that on the day of occurrence at the time of sun-rise Loona went to the forest with his herd of sheep. Ugma Ram (PW-3) added that about 10.00 A.M. he to went to the forest with his herd of sheep and he saw that sheep belonging to Loona were grazing in the field of Harji and Ramsukh and at that time Loona and Ramchandra were fighting with each other and Ramchandra inflicted injury on the neck of Loona with an axe and inflicted some other injuries on his hands. It is further stated by Ugma Ram (PW-3) that when he reached near Loona, Loona had already died, But blood was coming out of his injuries, and he reported this incident to his mother Smt. Muthra and thereafter his mother Smt. Ganga and aunt Smt. Mdthra both went to the spot where the dead body of Loona was lying, and he himself did not accompany them. 13. In his cross-examination Ugma Ram (PW-3) has admitted that there was no previous enimity between the accused and the deceased and that he had narrated about the incident to his brother Suja in the evening and that he as well as his father did not go with the dead body for consigning the same to flames. This witness was confronted with his police statement Ex. D-2. He denied having stated to the police that he does not know in whose field Loona was lying. He has further denied of having stated to the police that Smt. Chotudi and one other girl were present near the scene of occurrence when he saw the incident. It is also stated by him that he asked Ramchandra why he had inflicted injuries on Loona. He has denied that he is giving false statement because of a quarrel between him and Ramchandra and at the instance of Ghisu and Kesar Singh. It is obvious from the statement of Ugma Ram (PW-3) that he saw the incident at about 10.00 A. M. and reported the matter to his mother Ganga and aunt Smt. Muthra. According to Muthra (PW-4) she was told about the incident by Ugma Ram in the after-noon. It is obvious from the statement of Ugma Ram (PW-3) that he saw the incident at about 10.00 A. M. and reported the matter to his mother Ganga and aunt Smt. Muthra. According to Muthra (PW-4) she was told about the incident by Ugma Ram in the after-noon. Ganga mother of Ugma Ram has not been examined by the prosecution. It has not come in her statement as to at what time Ugma Ram (PW-3) gave her information about the incident but it is obvious that the information was given by Ugma Ram (PW-3) in the afternoon. There is thus considerable delay in giving the information to Muthra (PW-4). This circumstance adversely affects the credibility of Ugma Ram (PW-3) who is the solitary witness in this case. It may also be pointed out that according to Ugma Ram (PW-3) he did not accompany his mother and aunt to the scene of occurrence when they went to the field where the dead body of Loona was lying. Such conduct was quit unnatural on the part of Ugma Ram (PW-3) who was closely related to the deceased. Having regard to the contradictions between the statement made in the Court and statement recorded by the Police and the fact that he witnessed the incident at about 10.00 A.M. but after considerable delay gave the information about the incident to Smt. Ganga and Smt. Muthra (PW-4) in the after-noon and did not go to the place of occurrence where the dead body of the deceased was lying, clearly shows that this witness is not reliable witness. It may also be pointed out that the First Information Report in this case was lodged after a considerable delay i.e. about two days and the explanation given by Suja (PW-6) for lodging the First Information Report after such delay has not been proved by the prosecution. The explanation given by this witness is that the relatives of the accused prevented the father of the deceased from going to the Police station and forcibly consigned the body of the deceased to the flames. The explanation given by this witness is that the relatives of the accused prevented the father of the deceased from going to the Police station and forcibly consigned the body of the deceased to the flames. In our opinion, there is no sufficient ground to believe in this story because the relatives of the accused namely, Bharmal, Nathu, Hema Pusa and Dhana have not been prosecuted for obstructing the father of the deceased from going to the Police Station and for destroying the evidence of the case by forcibly consigning body of Loona to the flames. In these circumstances we do not find it safe to place reliance on the solitary testimony of Ugma Ram (PW-3). 14. Dr. Hari Prakash was examined for the purpose of proving that he had seen the dead body of Loona before it was taken to his house. But Dr. Hari Prasad (PW-1) has not supported the prosecution story and deposed that though Kesar Sjngh and some other persons had approached him in his hospital and had told him that Loona had received injuries but he did not go with them. Dr. Hari Prasad (PW- 1) has been declared hostile by the prosecution and he has denied the police statement Ex. P-1 but in the facts and circumstances of the case we think that his testimony may be held reliable, for there is no reason for him to give false evidence in the Court in this case. 15. The defence version as given by Jora Ram (DW-1) and Smt. Chotudi (DW-2) is to the effect that the deceased was cutting leaves of Khejadli tree and at that time he had fallen on the ground and blood started coming from his mouth and thereafter he was taken to his house and that he had no apparent injuries on the body. These two witnesses have not been shaken in the cross-examination and in view of the unshaken testimony of defence witnesses evidence of prosecution witness Ugma Ram (PW-3) deserves to be held unreliable. 16. For the above reasons we find force in the submission made by the learned counsel for the appellant and we are of the opinion, that the prosecution has failed to prove the charge framed against Ramchandra. Therefore, the appeal is allowed. Conviction and sentence passed by the learned Sessions Judge, Merta is hereby set aside and quashed. 16. For the above reasons we find force in the submission made by the learned counsel for the appellant and we are of the opinion, that the prosecution has failed to prove the charge framed against Ramchandra. Therefore, the appeal is allowed. Conviction and sentence passed by the learned Sessions Judge, Merta is hereby set aside and quashed. The appellant is hereby acquitted of the charge punishable under Section 302 of the Indian Penal Code. He is on bail. His bail bonds are hereby cancelled. He need not surrender.Appeal Allowed. *******