JUDGMENT 1. - This criminal appeal under Section 374 of the Cr.RC. at the instance of the accused appellant is directed against the judgment dated 30.9.1996 passed by the Additional Sessions Judge, Khetri, District Jhunjhunu in Sessions Case No. 20/95. Under this judgment the accused appellant was convicted for the offence punishable under Section 302 of the I.RC. and sentenced to life imprisonment with a fine of Rs. 100/-, in default of payment of fine he has to undergo one months rigorous imprisonment. 2. Facts of this case are that Malaram (PW-1) son of the Deva Ram, by caste Gujar, resident of Dhani Baichawali Tan Pratappura, Tehsii Khetri, District Jhunjhunu submitted a written report (Ex.P1) at the police station Khetri on 7th of June, 1995. On the basis of this written report of Maia Ram (PW-1), first information report (Ex.P-2) was registered against accused appellant Ghadsi Ram son of Ganpat. Prosecution case is that when complainant Mala Ram son of Deva Ram (PW 1) was at his home on 7th June, 1995 at about 6.00 PM Bhagirath son of Natha Ram (PW-2) came to his house and informed him that Ghadsi Ram son of Ganpat, by caste Gujar, resident of Burka, has committed murder of Jairam son of Sardara Ram by inflicting a knife blow on his back. 3. Deceased Jai Ram son of Sardara Ram'was the cousin i.e. son of the unde of complainant Maiaram (PW-1). 4. Deceased Jairam son of Sardararam was doing the work of Halwai (cook) on 6th of June, 1995. He went to Village Burka to do the Halwai work in the marriage of the daughter of Sultan Gujar of that village. Bhagirath son of Natha Ram, Jaimal son of Madaram and Ladu Ram son of Godaram of village of the complainant, also went to attend that marriage. 5. The incidence took place at 3.30 PM., Accused Ghadsiram ran away from the place of incidence with knife. This incidence has been witnessed by Bhagirath son of Natharam (PW-2), Jaimal son of Madaram (PW-3), Laduram son of Godaram (PW-4) and other persons who came to attend the marriage. 6. On this information, complainant Maiaram (PW-1) and Bhagirath along with three or four other persons of the village went to village Burka where they found Jairam lying dead near the house of Sultan Gujar. Many persons of village Burka assembled there at the place of incidence. 7. 6. On this information, complainant Maiaram (PW-1) and Bhagirath along with three or four other persons of the village went to village Burka where they found Jairam lying dead near the house of Sultan Gujar. Many persons of village Burka assembled there at the place of incidence. 7. PW-13 Girdhari Lal who was the S.H.O. of police station Khetri at the relevant time, registered this first information report (Ex.P2). He conducted the investigation. 8. During the course of investigation, he prepared a site plan (Ex.P-3). He drawn the inquest report (panchnama) (Ex.P-4) of deceased Jairam, the seizure memo of blood stained soil form the place of incidence (Ex.P-5), seizure memo of simple soil from the place of incidence (Ex.P-6), seizure memo of clothes of deceased Jairam (Ex.P-7). 9. The investigation officer arrested the accused and prepared the arrest and personal search memo of accused appellant on 8th of June, 1995 (Ex.P-16). After the arrest, the accused appellant gave information to the investigation officer under Section 27 of the Evidence Act about the knife (Ex.P-17) and Shirt (Ex.P-18) which was worn by the deceased on the date of the incidence. The iron dagger (knife) was recovered at the instance of the accused appellant and recovery memo thereof has been prepared which is (Ex.P-8). Similarly, as per the information, at the instance of the accused appellant the shirt was recovered and recovery memo Ex.P-9 has been drawn. The site plan of the place of recovery of knife (Ex. P-10) and that of the shirt of the accused appellant (Ex.P-i 1) were drawn. 10. Post mortem of deceased Jairam was conducted by Dr. B.S. Dadarwal (PW-10) on 8th of June, 1995. Post mortem report is Ex.P-15. He was posted on that date as Senior Medical Officer at Khetri Hospital. In his opinion the cause of death of the deceased was shock and hemorrhage following the stab wound injury to the left lung. 11. PW-14 Rajpal Singh, Malkhana incharge at the police station Khetri, has deposited five sealed articles in this case. PW-9 Mahipal Singh has taken the sealed article packets to the F.S.L. for delivery thereof and the same were delivered vide (Ex.P-14). 12. The investigation officer, after completing the investigation, submitted challan against the accused appellant in the court of Judicial Magistrate, 1st Class, Khetri which was committed to the court of Additional Sessions Judge, Khetri on 21st of July, 1995. 13. 12. The investigation officer, after completing the investigation, submitted challan against the accused appellant in the court of Judicial Magistrate, 1st Class, Khetri which was committed to the court of Additional Sessions Judge, Khetri on 21st of July, 1995. 13. On 21st of August, 1995 the Learned Additional Sessions Judge, Khetri framed charges under Section 302 of the IPC against the accused appellant for committing murder of deceased Jairam. The accused appeiiant denied the charges and claimed the trial. 14. During the trial, the learned Additional Sessions Judge, Khetri recorded the statement of following witnesses - Maiaram (PW1), Bhagirath (PW-2), Jaimal (PW-3), Laduram (PW-4), Hajarilal (PW-5), Ghudaram (PW-6), Sultan (PW-7), Pokar (PW-8), Mahipal (PW-9), Dr. B.S. Dadarwal (PW-10), Rameshwar (PW-11), Nanadram (PW-12), Girdharilal (PW-13) and Rajpal Singh (PW-14). 15. Statements of accused appellant were recorded under Section 313 of the Cr.RC on 3rd of September, 1996.In the defence, the accused appellant has not produced any witness. 16. Heard learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case. We have also carefully gone through the judgment of the trial court. 17. The injuries found on the person of the deceased have been given out by Dr. B.S. Dadarwal (PW-10), who had conducted the post mortem of the deceased. 18. Dr. B.S. Dadarwal, (PW-10), has given out the cause of the death of the deceased shock and hemorrhage following the stab wound injury to the left lung. 19. From the written report (Ex.P-1) of Maiaram (PW-1) submitted to the police and the F.I.R. lodged on the basis thereof, we find that Bhagirath (PW-2), Jaimal (PW-3), Laduram (PW-4) are stated to be the eye witnesses of the incident. Therefrom the presence of Maiaram (PW-1) at the place of incidence of highly questionable. This incidence has been reported to Maiaram (PW-1) by Bhagirath (PW-2). Maiaram (PW-1) has made the statement contrary to his own report Ex.P-1. He has projected himseif to be the eye witness of the incident. He stated that he had gone to attend the marriage at village Burka. Deceased Jairam went there to do the work of Halwai (Cook). Accused Qhadsiram and Ram Chandar came to Jairam and took him at a distance. Talks were going on between them, Ram Chandar caught hold to the hand of Jairam and accused Ghadsiram inflicted knife injury on his person. Deceased Jairam went there to do the work of Halwai (Cook). Accused Qhadsiram and Ram Chandar came to Jairam and took him at a distance. Talks were going on between them, Ram Chandar caught hold to the hand of Jairam and accused Ghadsiram inflicted knife injury on his person. In the cross examination, though, it is stated that he saw the accused inflicting injury with knife to the deceased. Statements made by him do not inspire confidence. He admitted that Jaimal was not with them. Where marriage was there at Burka he did not know. He has not told to the police whose marriage was there at Burka as he did not know the name. Where he did not know whose marriage was there at Burka on that date, his statements do not inspire any confidence. He, in fact, has given as what said earlier, statements contrary to his own report submitted to the police Ex.P-1 and rightly the learned trial court has not accepted his presence at the place of incidence 20. As per prosecution case, in the marriage of daughter of Sultan (PW-7) son of Devaram this incident is alleged to have been taken place. He has not supported the prosecution case, he was declared hostile. Accused Ghadsiram was his nephew. 21. Pokar (PW-8) son of Sheolal was declared hostile. He stated that Ghadsi and Jairam were coming together. Accused Ghadsi told to him that deceased Jairam is not returning his money. Jairam was telling that presently he has no money. He told to Jairam to return the money to Ghadsi, and Jairam told to Ghadsi that he has already paid Rs. 100/- and then Rs. 25/- and that the remaining money would be returned to him next day. Rameshwar (PW-11) was also declared hostile. 22. From the judgment of the learned trial court we find that the accused appellant was held guilty of committing murder of Jairam relying on the statements of Bhagirath (PW-2), Jaimal (PW-3), Laduram (PW-4) and Nanadram (PW12) son of Laxmanram and recovery of the knife and clothes of the deceased. 23. Learned counsel for the appellant contended that there are serious contradictions in the statements of witnesses, namely, Bhagirath (PW-2), Jaimai (PW-3), Laduram (PW-4). 23. Learned counsel for the appellant contended that there are serious contradictions in the statements of witnesses, namely, Bhagirath (PW-2), Jaimai (PW-3), Laduram (PW-4). Challenging the recovery of knife, learned counsel for the appellant submitted that the evidence comes on record that the accused ran away from the site of incidence dropping the knife and it is of no value and help to the prosecution. It is submitted that the knife also not been shown to the witnesses nor has been produced in the court. Not only this, F.S.L. report has also not been produced. Ex.P-8 is the recovery memo of iron dagger (knife) at the instance of the accused appellant. This recovery has been made in the presence of two motbirs Gudharam son of Shankarram and Sugnaram son of Hanuman. Gudharam was examined as PW-6. Having gone through the statement of Gudharam (PW-6) and Girdharilal (PW-13, the documents Ex.P-8 and Ex.P-10, we find though the recovery of iron dagger (knife) attempted to have been proved by the prosecution but of no value. 24. Bhagirath (PW-2) stated that he went in baraat to attend the marriage at village Burka. Ladu was also with him at Burka Whose marriage was there he did not know. Jairam, deceased, met with him. Accused Ghadsi was there. He saw accused Ghadsi for the first time at the time of incidence. He further stated that they were sitting in the shed of jatti. Ram Chandar caught hold of Jairam and Ghadsi inflicted knife blow at the back to deceased Jairam who died on the spot. When accused Ghadsi had attempted to run away, he was caught hold of and tide. In cross- examination, he has given out the time of incidence to be 5.00 PM. The marriage was at the house of which person he did not know nor told to the police. They were sitting towards the east of the house. He and Ladu were at the distance of 100 pawdas. Jaimal was not with them. They were sitting about 100 pawdas away from the house where the marriage was there. There is a major contradiction in the statements recorded in the court and the statements recorded by the police under Section 161 of the Cr.RC. 25. Jaimal (PW-3) stated that he along with Laduram and Bhagirath went to Vilalge Burka to attend the marriage. They were sitting about 100 pawdas away from the house where the marriage was there. There is a major contradiction in the statements recorded in the court and the statements recorded by the police under Section 161 of the Cr.RC. 25. Jaimal (PW-3) stated that he along with Laduram and Bhagirath went to Vilalge Burka to attend the marriage. He saw Ghadsi inflicting the knife blow on the person of Jairam and he died there. In the cross-examination he has given out that there is a boundary wall around the guwadi. Towards north it is of 2ft height, towards south it is of 4ft height. He does not know where accused Ghadsi and deceased Jairam were sitting. On hearing of inflicting of the knife injury they rushed towards the place of incidence and on reaching there, found the body of the deceased lying there at 3 to 4 pawdas towards the north of pucca house He admitted they have not seen the incidence. They saw the body of the deceased lying there, he does not name of the person at whose house they went to attend marriage. We consider it to be appropriate to reproduce here his own version in the statements : " djhc 6&7 eghus igys dh ckr gSA fnu ds rhu cts dh ckr FkhA esjs lkFk ml fnu HkkxhjFk o ykVw FksA ge rhuksa vkneh 'kknh esa Hkwjdk x;s FksA ge Hkwjdk esa fdl ds ?kj x;s Fks mudk uke ugha tkurkA ge ckjkr esa x;s FksA ?kMlh o e`rd nksuksa dgkWa cSBs Fks eq>s irk ughaA ge dks rks lquk fd Nqjk ekj fn;kA Nqjk ekj fn;k rc ge Hkkxdj vk;sA ge tc x;s rc e`rd iDds edkuksa ls rhu&pkj iko.Mk nwjh ij mRrj dh rjQ [kM+k FkkA geus dksbZ ?kVuk ugha ns[kh] geus rks e`rd dks iM+s gq, dks ns[kk FkkA " 26. Having gone through the statements made by this witness (PW-3) we are satisfied that he has not witnessed this incidence. 27. Laduram (PW-4) stated that he, Jaimal and Bhagirath went in Barat. In the marriage of daughter of which person they went he did not know. Jairam and Ghadsi were sitting under the jatti of guwadi. They were sitting at a distance of 5ft. They were talking and suddenly Ghadsi inflicted knife blow on the back of Jairam, He saw Ghadsi inflicting of knife blow on the back of Jairam. In the marriage of daughter of which person they went he did not know. Jairam and Ghadsi were sitting under the jatti of guwadi. They were sitting at a distance of 5ft. They were talking and suddenly Ghadsi inflicted knife blow on the back of Jairam, He saw Ghadsi inflicting of knife blow on the back of Jairam. As a result of this injury, Jairam died on the spot, in the cross-examination he stated that Jairam and accused Ghadsi were sitting in the east side of guwadi near to the wall. They went on the spot when many other person assembled there and Jairam died. Then he stated that on seeing the incident they rushed towards the place of incidence. Jaimal was stated to be with him, which Bhagirath denied. They were sitting inside the house, incidence was at place X in site plan (Ex.P 3). As per Bhagirath they were sitting outside the house towards east thereof at a distance of 100 pawdas. Jaimal (PW-3) stated where deceased and accused were sitting he does not know. What it comes from his own mouth will better to reproduce the same here : " vkt ls djhc N% eghus igys dh ckr gSA ge ckjkr esa x;s gq, FksA fnu ds djhc rhu cts dh ckr gSA eSa] t;ey o HkkxhjFk rhuksa fpye ih jgs FksA eSa fdldh yM+dh dh 'kknh esa x;k gqvk Fkk eq>s irk ugha gSA ge ckjkr esa vk;s FksA t;jke o ?kM+lhjke xqokM+h ds tkV ds uhps cSBs FksA ge ls djhc ikap QqV dh nwjh ij cSBs gq;s FksA ge xqokM+h ds vUnj gh cSBs FksA t;jke o eqfYte xqokM+h ds vxquh rjQ nhokj ds lgkjs cSBs gq, FksA ge rks tc yksx bDV~Bs gks x;s Fks vkSj t;jke [kRe gks x;k rc mlds ikl x;k FkkA ckn esa dgka fd ?kVuk ns[kdj ge Hkkxs FksA t;ey o HkkxhjFk esjs lkFk gh FksA " There is serious contradiction regarding time of the incidence. 28. Nanadram (PW-12) stated that he was doing the word of tailoring in house of Suitan Gujar on the day of incidence in the marriage of his daughter. The accused was also on of the invitees. He identified the accused in the court. 28. Nanadram (PW-12) stated that he was doing the word of tailoring in house of Suitan Gujar on the day of incidence in the marriage of his daughter. The accused was also on of the invitees. He identified the accused in the court. Peoples were busy in serving the meal to the baratis and he was doing his tailoring work, inside of the house of Sultan there was hue and cry and on hearing it he came out and saw Jairam lying dead and from his backside blood was oozing. Ghadsiram was running holding the knife. Peoples who were standing there toid to him that Ghadsiram after inflicting the knife injury on the person of Jairam is running. In the cross examination he has made a categorical statement that he was not present when accused Ghadsiram inflicted the knife blow on the person of the deceased Jairam. 29. Bhagirath (PW-2) is relation of the deceased. Laduram and Nanadram are also relation of the deceased. The deceased was also related to Maiaram (PW-1). Maiaram and Bhagirath are the uncle of deceased Jairam. The deceased Jairam was uncle of Jaimal (PW-3). Deceased Jairam was cousin of Laduram (PW-4). Laduram is the brother of Bhagirath (PW-2) and Jaimal (PW-3) is his nephew. Maiaram (PW-1) is also his brother. From the statement of Nanadram (PW-12) it is also clear that he is related to deceased Jairam. His brother was married to a girl belonging to the family of deceased Jairam. Regarding the relation of these witnesses with the deceased, we cannot do better than to reproduce here what it comes from their own mouths.: PW-1 : " eSa t;jke ds lxs rkm dk yM+dk gwWaA "PW-2 : " e`rd esjk dkdk rkm esa pkpk yxrk gSA HkkxhjFk xokg o ekykjke Hkh esjs pkpk yxrs gSaA "PW-3 : " e`rd esjs ifjokj esa pkpk dk yM+dk HkkbZ yxrk gSA " 30. From the statements of these witnesses we find that they are highly interested persons. It is difficult to accept Bhagirath (PW-2) to be an eye witness of the incident. He admitted in his cross examination that Jaimal was not with them. He further stated that the wall adjacent to which Jairam, Ghadsi and Ram Chandar were standing, is of 9ft. height. From one side of this wall what is happening toward the other side cannot be seen. He admitted in his cross examination that Jaimal was not with them. He further stated that the wall adjacent to which Jairam, Ghadsi and Ram Chandar were standing, is of 9ft. height. From one side of this wall what is happening toward the other side cannot be seen. However, in the site plan (Ex.P-3) the place of incident is marked as "X" and he was sitting with Laduram (PW-4) towards the house at a distance of 100 pawdas i.e. about 100-150 fts. Laduram stated they were sitting inside*the house. He has given out a story which is not the story of the prosecution. He stated that Ram Chandar caught hold of the hand of deceased Jairam and accused Ghadsi inflicted the knife blow on the persons of the deceased. He has stated that Jaimal was not with him but form the statements of Jaimal and Laduram we find that Jaimal was with them. There is also contradiction in respect of the time of the incident. From the document Ex.P-2 we find that this incident took place at 3,30 PM. Other prosecution witnesses, namely, Jaimal (PW-3) and Laduram (PW-4), 'who are also stated to be the eye witnesses, not stated that Ram Chandar caught hold of the hand of deceased Jairam. This incident took place in the house where the marriage function was going on, as per PW-4. PW- 2 stated it to be outside, independent witness has not been produced. These witnesses, as said earlier, are highly interested persons being the closed relation of the deceased and their statements are to be closely and carefully scrutinised and appreciated so as to avoid any possible false implication of the accused. 31. From t' e statement of Laduram (PW-4) we are satisfied that he and Bhagirath have of seen the incident. 32. From the statement of PW-4 it comes out that they reached on the spot after this incident took place. 33. On a careful scrutiny of the statements of PW-2, PW-4 and Ex.P-3, we are satisfied that the place of incidence do not talley. Their presence at the place of incidence otherwise also is highly doubtful as per their own statements. They are the villagers and it is very very difficult to accept that they were not knowing the name of the person at whose house they went to attend the marriage. Their presence at the place of incidence otherwise also is highly doubtful as per their own statements. They are the villagers and it is very very difficult to accept that they were not knowing the name of the person at whose house they went to attend the marriage. Consistently all these three witness, in their Statements, have shown totally their ignorance regarding the name of bribe or father of the bribe. Looking to the fact that these persons came from the village and distance of their village and the village where they came to attend the marriage may not be far off. It is difficult to accept that they would not have known of the name of bribe and her father. Relying on the statements of these witnesses it is difficult to convict and sentence the accused appellant for the offence punishable under Section 302 IPC. 34. From the statements of Bhagirath (PW-2) we find that they went in a marriage at Sarai for bhaat and therefrom they came in Barat. On close and careful scrutiny of this statement, it comes out that had he gone with Laduram to village Burka to attend the marriage then certainly he would have known the name of bribe or her father.Nanadram (PW-12) is not the eye witness. He is also highly interested person and his statement is that he has been Ghadsiram running away holding a knife in his hand. 35. Now we advert to the recovery of the knife. First of all we would like to state here that the knife was not shown to the doctor who did the post-mortem of deceased Jairam so as to confirm whether the injuries could have been inflicted by it. From Ex.P-8, the seizure memo of knife, we find there was dried blood on the knife. The knife was sent to the F.S.L. for its chemical examination which is borne out from the documents Ex.P-14, Ex.P-19 and the statement of PW-14 Rajpal Singh and that of PW-9 Mahipal Singh but the F.S.L. report has not been produced on record. Bhagirath (PW-2) has stated that when accused Ghadsi made attempt to run away, he has caught hold of and tide up. PW-4 Laduram, in his cross-examination has stated that. " Nqjs dks rks ogkWa ds vknfe;ksa us [kksl fy;k FkkA " 36. Bhagirath (PW-2) has stated that when accused Ghadsi made attempt to run away, he has caught hold of and tide up. PW-4 Laduram, in his cross-examination has stated that. " Nqjs dks rks ogkWa ds vknfe;ksa us [kksl fy;k FkkA " 36. Nand Ram (PW-12), in his cross-examination, stated : " eqfYte ?kM+lhjke tks Nqjk ysdj Hkkx jgk Fkk mldks ogkWa ij [kksl fy;k Fkk o [kksl dj lqYrku ds ?kj ij j[k fy;k FkkA " 37. PW-13 Girdhari Lal, in his cross-examination, stated on a question being put by the defence counsel, that: " ;s ckr lgh gS fd ftl LFkku ij Nqjk cjken djuk cryk;k x;k gS og LFkku [k.Mj gS vkSj ogkWa dksbZ Hkh vk tk ldrk gSA " 38. It is stated by this witness in his cross examination, on a question being put by the counsel for the defence that: " ;g dguk xyr gS fd eSaus Nqjk lqYrku ds ?kj ls fy;kA " 39. Ex.P-8, the document of recovery shows that the knife is alleged to have been recovered in the presence of two motbirs, namely, Ghudharam son of Shankarram and Sugnaram son of Hanuman. It is stated in the seizure memo (Ex.P-8) that: " QnZ gktk gLc dk;nk eqfrZc dj ekSrfojke o eqfYte dks i<+dj lqukbZA lqu o le>dj lgh gksuk eku vius&vius gLrk{kj o vaxwBk yxk;kA " 40. Out of these two motbirs, the prosecution has produced only Ghudaram as PW-6. He has stated in the cross- examination. " esjs Fkkus esa Hkh izn'kZ ih&8 yxk;r 11 ij vkB rkjh[k dks nks <+kbZ cts gLrk{kj djok;s FksA " 41. This document Ex.P-8 was prepared at 1.45 PM. As per the recital therein, it was prepared on the spot and got signed by motbirs. This is also what it is stated by PW-13 Girdharilal, the investigation officer. 42. As per the statement of Ghudaram (PW-6) reproduced above, his i signatures on this document were also obtained at the police station. Two signatures of this witness are not there on this document. From the statements of Dhoodaram (PW-6) this recovery of knife has become highly doubtful. There is evidence that this knife was snatched from the accused on the spot and the same had been placed in the house of Sultan. This recovery is nothing but i appears only an attempt of creation of evidence by the prosecution. From the statements of Dhoodaram (PW-6) this recovery of knife has become highly doubtful. There is evidence that this knife was snatched from the accused on the spot and the same had been placed in the house of Sultan. This recovery is nothing but i appears only an attempt of creation of evidence by the prosecution. The act of the prosecution not to show the weapon of offence to the doctor and, though, as per the document Ex.P-8 there was dried blood on it and same was sent to F.S.L. but the F.S.L. report is not produced, makes whole of the story of the prosecution highly doubtful. : 43. Having closely and carefully gone through the statements of the prosecution witnesses and the recovery of knife, relying thereon the learned trial court convicted and sentenced the accused appellant for the offence punishable under Section 302 IPC, we are satisfied that the prosecution has failed to prove its case against the accused appellant beyond reasonable doubt. 44. As a result of the aforesaid discussion, this appeal succeeds and the same is allowed. The judgment of the learned Additional Sessions Judge, Khetri, District Jhunjhunu dated 30.9.1996 in Sessions Case No. 20/95 is quashed and set aside. The accused appellant Ghadsiram son of Ganpat, by caste Gujar, resident of Burka, Police Station Khetri, District Jhunjhunu (Raj.) (at present in Central Jail, Jaipur) is acquitted of the charges under Section 302 IPC in this case. The accused appellant be set at liberty forthwith if he is not required in any other case.Appeal allowed. *******