JUDGMENT 1. - This appeal is directed against the judgment dated 18.12.1996 passed by the Additional Sessions Judge, Nohar Camp Bhadra convicting the appellant of offence Under Sections 302 & 458 Indian Penal Code and sentenced him to imprisonment for life and to pay a fine of Rs. 1000/-; in default of payment to further undergo six months simple imprisonment. The appellant has also been convicted for offence Under Section 458 Indian Penal Code and sentenced to 5 years rigorous imprisonment and to pay a fine of Rs.500/-; in default of payment to further undergo one month simple imprisonment. 2. Appellant Dugad Singh and two other accused persons Hanuman Singh and Laxman Singh since acquitted were put to trial on the charge of murder of Chunni Ram. 3. Briefly stated the prosecution case is that on 8.11.1993 at 2.00 p.m., P.W. 2 Kishana Ram lodged a First Information Report at Police Station, Nohar stating inter alia that in the night at about 10.00 P.M. he was at his residence along with his son P.W. 3 Dalip Kumar and brother Jagdish. His elder brother Chunni Ram was sleeping in the court yard ('Bakhal'). At that time they heard the out cry of P.W. 5 Mst. Geeta wife of his elder brother. They rushed towards the house of Chunni Ram and found that Dugad Singh, Laxman Singh and Hanuman Singh were running away from the 'Bakhal' of his elder brother. Other villagers namely Kami Singh, Bhadar Singh, Kalyan Singh, Hamir Singh, Pappu Singh etc. were standing in the street. Dugad Singh, Laxman Singh and Hanuman Singh were carrying 'Barchies' in their hand. Kami Singh, Bhadar Singh, Kalyan Singh, Hamir Singh and Pappu Singh were carrying lathies in their hand. He saw his brother Chunni Ram in the flash of the battery. His Bhabhi P.W. 5 Geeta disclosed that Dugad Singh, Laxman Singh and Hanuman Singh armed with 'Barchies' thrashed her husband Chunni Ram. His dead body was lying on cot in pool of blood. The out cry attracted the other villagers namely Lekhram Bhaiya, Bhuraram, Harpat Ram, Moman Ram Bhaiya etc. He also stated that about 20-22 years back Hanuman Singh's brother Bakhtawar Singh was murdered on the occasion of Holi. In the said murder case his brother Chunni Ram, Sheoji Ram, Mamraj, Surja Ram etc. were tried. The out cry attracted the other villagers namely Lekhram Bhaiya, Bhuraram, Harpat Ram, Moman Ram Bhaiya etc. He also stated that about 20-22 years back Hanuman Singh's brother Bakhtawar Singh was murdered on the occasion of Holi. In the said murder case his brother Chunni Ram, Sheoji Ram, Mamraj, Surja Ram etc. were tried. He stated that on account of the enmity Dugad Singh and others have committed the murder of his brother Chunni Ram. On this information, police registered a case for offence Under Sections 302, 458, 147, 149, 34 Indian Penal Code and proceeded with the investigation. Appellant Dugad Singh was arrested on 15.11.1993 vide Ex.P.16. In pursuance of the information given by him a bloodstained 'Barchi' was recovered. The police Laid a charge-sheet against appellant Dugad Singh for offence Under Sections 302, 458 Indian Penal Code The learned Additional Chief Judicial Magistrate by order dated 28.11.1994 took cognizance against accused Hanuman Singh for offence Under Sections 302 & 458 Indian Penal Code The trial court added the accused Laxman Singh by order dated 7.3.1995 to face trial for offence Under Sections 302, 458 Indian Penal Code This way the three accused persons including appellant were put to trial on the charge of murder of Chunni Ram. 4. All the three accused persons pleaded not guilty and claimed trial. The prosecution to prove the charge levelled against the appellant examined 8 witnesses and produced number of documents. The appellant and other accused persons in their statements Under Section 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing against them. The trial court found that the~ entire case rests on the single testimony of eye witness P.W. 5 Mst. Geeta. He found her testimony not wholly reliable and rejected the same as against the accused Hanuman Singh and Laxman Singh. Accordingly, the learned Judge acquitted the accused Hanuman Singh and Laxman Singh of offence Under Sections 302/34, 458 Indian Penal Code However, the case of the appellant was distinguished with the two other accused persons on the ground that in addition to the statement of P.W. 5 Mst. Geeta, there is also an evidence of recovery of weapon of offence against him. Accordingly the learned Judge convicted and sentenced the appellant Dugad Singh as noticed above. 5. Assailing the conviction, it is contended by Mr. Geeta, there is also an evidence of recovery of weapon of offence against him. Accordingly the learned Judge convicted and sentenced the appellant Dugad Singh as noticed above. 5. Assailing the conviction, it is contended by Mr. M.L. Garg learned Counsel for the appellant that P.W. 5 Mst. Geeta has not specified as to who caused the fatal injuries to the deceased Chunni Ram. It is submitted that as per the post mortem report Ex.P.-2, there were only two injuries on the person of deceased Chunni Ram. As per the prosecution case, there were three accused persons armed with 'Barchies' and as such the prosecution has failed to point out as to out of three, who inflicted two injuries to Chunni Ram. It is submitted that Section 34 Indian Penal Code can not be attracted in this case as the learned Judge has acquitted accused Hanuman Singh and Laxman Singh and the State has not preferred an appeal against their acquittal. It is also submitted that merely on the basis of recovery of 'Barchi', it cannot be conclusively held that it was the appellant alone out of three who caused the fatal injuries to deceased Chunni Ram. The learned Counsel has placed reliance on two decisions of the Apex Court in Deva v. State of Rajasthan 1999 Supreme Court Cases (Cri) 41 and Sohan Lal and Ors. v. The State of U.P. 1971 Supreme Court Cases (Cri.) 206 . On the other hand the learned Public Prosecutor has supported the judgment of the trial court. It is submitted by Mr. I.S. Pareek learned Public Prosecutor that the recovery of the 'Barchi' is of great significance in the instant case for the reason that as per the Forensic Science Laboratory Report Ex.P.21, there is not only presence of human blood, but blood found on the 'Barchi' is of the same group i.e. of the Group-B of the deceased. It is submitted that the accused has not explained the presence of B Group blood on the 'Barchi'. It is also submitted that there is sufficient evidence on record to show that the head injury of the deceased Chunni Ram was a bleeding injury. Thus, according to the learned Public Prosecutor the testimony of P.W.5 Mst. Geeta, even if it is held to be partly reliable finds corroboration from the recovery of 'Barchi' at the instance of appellant Dugad Singh. 6. Thus, according to the learned Public Prosecutor the testimony of P.W.5 Mst. Geeta, even if it is held to be partly reliable finds corroboration from the recovery of 'Barchi' at the instance of appellant Dugad Singh. 6. We have scanned, scrutinised and evaluated the prosecution evidence and considered the rival contentions. Before, we deal with the contentions of the parties, it will be appropriate to briefly notice and re-appreciate the prosecution evidence. 7. P.W.4 Dr. Ladhu Ram has stated that he conducted the postmortem on the body of deceased Chunni Ram and found the following injuries on his person: 1. Incised wound 12" x 5" x 3" on Lt. parietal 2" anteriorly from the Lt. ear and above down wards causing multiple fracture of skull bones and brain matter is also incised and Lt. eye destroyed. 2. Incised wound 12" x 4" x 3" placed transversely 1/2" below Lt. ear extending from Lt. lateral side of neck to Rt. angle of mouth. Causing fracture of mandible and incising the tongue and great blood vessels of neck. He has proved the post-mortem report Ex. P. 2. On opening, he also found fracture of skull bones and fracture of, mandible. In his opinion, the deceased died due to cerebral injury. The injuries were ante mortem in nature caused by sharp edged weapon. 8. The entire case rests mainly on the evidence of P.W. 5 Smt. Geeta. This witness has not been found to be of sterling worth by the trial court. She has been found partly reliable and as such in absence of corroration, trial court acquitted co-accused Hanuman Singh and Laxman Singh. However, the appellant has been convicted as in addition to the statement of P.W.5 Mst. Geeta, there is an incriminating evidence of recovery of 'Barchi'. Thus, it would be appropriate to consider the evidence of recovery before we re-appreciate the evidence of P.W. 5 Mst. Geeta and other witnesses. 9. The appellant Dugad Singh was arrested on 15.11.1993 vide Ex. P. 16. On the same day, a blood stained 'Barchi' was recovered vide Ex. P. 19 in pursuance of the information given by him to the Investigating Officer P.W.8 Mahendra Singh vide Ex.P.18. The 'Barchi' was sent to the Forensic Science Laboratory for chemical examination. Mr. M.L. Garg counsel appearing for the appellant has critised the evidence of recovery on two grounds. On the same day, a blood stained 'Barchi' was recovered vide Ex. P. 19 in pursuance of the information given by him to the Investigating Officer P.W.8 Mahendra Singh vide Ex.P.18. The 'Barchi' was sent to the Forensic Science Laboratory for chemical examination. Mr. M.L. Garg counsel appearing for the appellant has critised the evidence of recovery on two grounds. Firstly it was not recovered from the concealed place and secondly no blood has been found on the blade of the 'Barchi'. As far as the first ground is concerned P.W. 8 Mahendra Singh has stated that the appellant Dugad Singh gave information that he has kept the 'Barchi' in the eastern corner of the northern room of his residential house. It would be convenient to extract the relevant statement of Mahendra Singh as follows: eSaus ,d cNhZ] vkyk dry esjs edku fjgk;'kh iwohZ dqV esa cus iDdk dksBk mRrjh ckj ds vUnj cMrs gh mRrjh if'peh dqV esa j[k NksM+h gSA He has also admitted that in his residential house he was residing along with his mother, father and other brother. It is significant to notice that his brother Laxman Singh was also tried on the same charge of the murder of Chunni Ram. Thus, possibility cannot be ruled out that the 'Barchi' was placed by Laxman Singh or some body else. Therefore, it cannot be said that the 'Barchi' was in the exclusive possession of the appellant Dugad Singh. We cannot lost sight that the 'Barchi' has not been recovered from any concealed place, but a place in the residential house, which was accessible to not only his mother and father but also the other brother, who was an accused in the same case. Though, It is not always necessary that the recovery Under Section 27 of the Evidence Act is made only from the hidden place but it should be a place of exclusive knowledge of the accused. On this count alone the evidence of recovery against the appellant deserves to be rejected. The another reason to reject the evidence of recovery is that no blood has been found on the" blade of the 'Barchi'. The recovery memo Ex. P. 19 clearly shows that the blood has been detected on the 'Danda' of the 'Barchi'. On this count alone the evidence of recovery against the appellant deserves to be rejected. The another reason to reject the evidence of recovery is that no blood has been found on the" blade of the 'Barchi'. The recovery memo Ex. P. 19 clearly shows that the blood has been detected on the 'Danda' of the 'Barchi'. P.W. 8 Mahendra Singh has clearly admitted that there was no blood on the blade of the 'Barchi', which was recovered from the accused. The relevant statement is extracted as follows: cjNh cjken dh xbZ mlds Qky dh YeckbZ 8 bap dh Fkh vkSj mlds Qky ij [kwu yxk gqvk ugha FkkA Thus, the recovery of 'Barchi' in absence of blood on the blade cannot be used as an incriminating circumstance against the appellant. Thus, in our opinion, the learned Judge has committed an error in using the evidence of recovery that an incriminating circumstance against the appellant. 10. That once the evidence of recovery is excluded, the case of the appellant is not distinguishable from the case of other two accused Hanuman Singh and Laxman Singh, who have been acquitted by the trial court. It is also not in dispute that the State has not preferred any appeal against their acquittal. However, we have read the evidence of P.W. 5 Mst. Geeta and we are of the opinion that the trial court has rightly held that she is not a witness of sterling worth. She is the wife of deceased Chunni Ram. She has stated that at the night of the fateful day, she was sleeping on the door of the kitchen of the house. Her deceased husband was sleeping in the compound. She was awaken by some sound from the outside. She got up and moved towards that side. She found that Dugad Singh, Hanuman Singh and Laxman Singh all the three entered in the compound and assaulted her husband by 'Barchies, while he was sleeping. Her out cry attracted P.W. 2 Kishna Ram, P.W. 3 Dalip Kumar and Jagdish. She also stated that after thrashing her husband the accused persons ran in the street towards the northern side. Her husband died on the spot. She also stated that on account of old enmity her husband was killed by the accused persons. She has further stated that all the three accused persons gave crash 'Barchi' blows to her husband. She also stated that after thrashing her husband the accused persons ran in the street towards the northern side. Her husband died on the spot. She also stated that on account of old enmity her husband was killed by the accused persons. She has further stated that all the three accused persons gave crash 'Barchi' blows to her husband. She could not give the account of the injuries caused by each of the accused persons. She further stated that till Kishna etc. arrived at the spot the accused persons continued to assault her husband. If this part of the statement is true then the deceased Ghunni Ram should have sustained number of injuries. But her statement is belied by the medical evidence inasmuch as there are only two injuries on the person of the deceased Chunni Ram. Though she has stated that she was sleeping at the door of the kitchen, but site plan Ex.P.9 does not show of there existed kitchen. The site plan also does not show as to what place Mst. Geeta was standing. The site plan has also not been prepared at the instance of the only eye witness Smt. Geeta, inspite of the fact that she was available throughout at her residence. She has also admitted in the cross-examination that the statement of Kishna Ram and Dalip Kumar were recorded earlier to recording of her statement. She has further admitted that Kishna and Dalip instructed her that she should depose only on the line on which they have given the statements before the court. The relevant statement is extracted as follows: ;g ckr lgh gS fd esjs ls igys fd'kukjke vkSj nyhi ds c;ku gks pqds gS! eq>s fd'kukjke o nyhi us crk fn;k Fkk fd gekjs c;ku gks pqds gSaA fd'kuk vkSj nyhi us eq>s ;g crk fn;k Fkk fd vnkyr esa ge D;k c;ku nsdj vk;s gSa vkSj rq>s Hkh gekjs c;ku ds eqrkfcd gh c;ku nsuk gSA A reading of the statement of Mst. Geeta shows that she has not actually seen the accused persons causing injuries by 'Barchies' to the deceased Chunni Ram. Thus, the learned trial court was right in holding that P.W.5 Geeta is not a witness of sterling worth. 11. P.W.2 Kishna Ram and P.W.3 Dalip Kumar have stated that on hearing the out cry of Mst. Geeta shows that she has not actually seen the accused persons causing injuries by 'Barchies' to the deceased Chunni Ram. Thus, the learned trial court was right in holding that P.W.5 Geeta is not a witness of sterling worth. 11. P.W.2 Kishna Ram and P.W.3 Dalip Kumar have stated that on hearing the out cry of Mst. Geeta when they reached at the spot, they found these three accused persons namely appellant Dugad Singh, Hanuman Singh and Laxman Singh running away from the spot. 12. As per the medical evidence, there are only two injuries on the person of deceased Chunni Ram. Thus, there is nothing to show that out of three who caused two injuries. At least one has not caused any injury. No blood has been found on the blade of the 'Barchi' recovered from the possession of the accused appellant. Thus, this weapon appeared to have not been used in committing the murder of Chunni Ram. Against the other accused persons, who have been acquitted, no appeal has been filed by the State. Thus, in our opinion the conviction of the appellant Under Section 302 Indian Penal Code is not sustainable. 13. Consequently, this appeal is allowed. The conviction and sentence of the accused appellant Dugad Singh Under Sections 302 & 458 Indian Penal Code is set aside. The appellant Dugad Singh is in Jail, he shall be released forthwith, if not required in any other case.Appeal allowed. *******