JUDGMENT 1. - The appellant has been convicted, by the learned Addl. Sessions Judge, Raisinghnagar vide his judgment dated 2.8.99 passed in Sessions Case No. 70/95, for the offence under Section 302 I.PC. and sentenced to imprisonment for life alongwith a fine of Rs. 5000/-, in default of payment of fine to undergo one year's Simple imprisonment. 2. Brief facts of the case are that, on 10.7.95 one Suhava Singh lodged a written report at Police Station Raisinghnagar, to the effect that in the night of 9.7.95 he had submitted a report regarding the death of his son Atma Singh, and in furtherance thereof, has come to further learn that his son was killed by his neighbour Kulwant Singh, by taking him to his residence at 5 P.M. Thereafter he was administered alcohol, adulterated with intoxicants, and on account of excessive administration of alcohol his son became unconscious, in which condition he was dropped outside his house, and that today, Jogender Singh, resident of same village, informed that the appellant had gone in the morning to the house of Jogender Singh,and disclosed the entire episode, and disclosed that by killing Atma Singh he has satisfied his heart burning. Likewise it was also mentioned that, Vajir Singh had also told him that last evening at about 7.30-8.00 PM. when he had gone to fetch liquor to the house of Kulwant Singh, he saw the appellant to be administering liquor to Atma Singh. On this basis the informant concluded that in order to take revenge, firstly Kulwant Singh developed an ostensible friendship, then by deception, with intention to kill, administered liquor adulterated with poisonous substance, and thereby his son has died. It was also given out, that his son was carrying illicit relation with the mother Kulwant Singh, and on account of that enmity, he had been killed. Kulwant Singh's father and brother were also alleged to be involved in the incident. 3. On this report a case under Section 302 and 120B I.P.C. was registered, and after completing investigation a challan was filed in the Court of Additional Munsif Magistrate, against Kulwant Singh for offence under Section 302 I.P.C. wherefrom the case was committed to the learned trial court. 4. The learned trial court framed charge under Section 302 I.P.C. During trial the prosecution examined some 11 witnesses. The appellant in his statement under Section 313 Cr.PC. 4. The learned trial court framed charge under Section 302 I.P.C. During trial the prosecution examined some 11 witnesses. The appellant in his statement under Section 313 Cr.PC. denied the allegations, and took the stand of having been falsely implicated on account of party fraction. In defence the accused examined D.W. 1 Darshan Singh, to depose that some four years ago an incident had occurred between Atma Singh with Kripal Singh, Kulwant Singh and Angrej Singh, wherein Kripal Singh, _Kulwant Singh, Kulwant Singh's mother and Suhava Singh sustained injuries. On the day following, a Panchayat was conveyed wherein Ramesh Singh had given out his intention to take revenge where-after Atma Singh's wife had gone to her parental home, thereafter another incident happened between Ramesh Singh and two brothers-in-law of Ramesh Singh and Atma Singh, wherein Atma Singh became unconscious, and he was taken to Raisinghnagar Mandi in a Jeep, and it was heard that Atma Singh had expired. According to witness, Atma Singh died in the market. 5. He also deposed that according to widow of Atma Singh, Atma Singh was killed by Ramesh Singh and Ramesh Singh's two brothers-in-law. 6. The learned trial court after appreciating the oral evidence, consisting of P.W. 4, P.W. 6 and P.W. 7, and that of Dr. P.W. 2 Subhash Gupta, Post Mortem Report of the Medical Board Ex.P. 1, and the Forensic Science Laboratory Report Ex.P. 2, found it proved, that the accused took away the victim of his own house, and administered poison Diazepam by mixing it with alcohol, which caused asphyxia, and caused the death of the deceased. The learned trial court also relied upon the evidence of recovery of illicit liquor duly adulterated with Diazepam, steel glass, so also remaining stock of intoxicating pills of Diazepam on the information and at the instance of the accused, the Viscera, the alcohol and the pills all having been found positive for Diazepam in Ex.P 2. The learned trial court also believed the extra judicial confession as alleged by the prosecution. Regarding motive the learned trial court found it proved to be, the deceased having illicit relations with the mother of the appellant, and on that count to eliminate the deceased, he was killed by administering poison. 7. The learned trial court also believed the extra judicial confession as alleged by the prosecution. Regarding motive the learned trial court found it proved to be, the deceased having illicit relations with the mother of the appellant, and on that count to eliminate the deceased, he was killed by administering poison. 7. Assailing the impugned judgment it is contended by the learned counsel, that the main plank of the prosecution case is the extra judicial confession, and the evidence of P.W. 4 deposing to have seen the appellant administering alcohol to the deceased at the house of the appellant, but a look at their statement, and a proper appreciation thereof, would show that neither of these witnesses can at all be believed, and in any case even if some-how P.W. 4 were to be believed, his evidence is wholly innocuous, and the only evidence regarding extra judicial confession is of P.W. 6, while a bare reading of his statement does establish that no extra judicial confession is proved to have been made by the appellant. According to the learned counsel may be that the victim may have died on account of asphyxia, resulting from consumption of Diazepam, and/or alcohol, but then the question is as to whether it was the appellant who administered said poison, and with intention to kill the deceased ? It is also contended by the learned counsel that Diazepam is a Tranquilizer, and may be that the victim may have voluntarily consumed it, in view of the attending family circumstances, so also his mental state of stree under which he was living and in that process may have consumed in excessive quantity, and died, but then for that the appellant cannot be held liable. The learned counsel then contended that there is material variance in the words said to be constituting the extra judicial confession, as deposed by Jogendra Singh, Suhava Singh in the court, vis-a-vis as deposed in the police statement. Then according to the learned, as per the statement of Suhava Singh, Jogendra Singh met him in the hospital after he had lodged the F.I.R. while in the FI.R. there is a mention about the extra judicial confession having been made before Jogendra Singh, and Jogendra Singh having told it to the informant, thus the theory of Extra Judicial Confession is a concoction. It is next contended that there are infirmities in the investigation inasmuch as a look at the Malkhana Register Ex.P-13 in conjunction with the various recovery memos shows that certain articles had been deposited in the Malkhana even prior to their recovery. Likewise according to learned counsel the empty glass which has been examined by the Forensic Science Laboratory is not even shown to have been sent, and if it is taken to have been sent then that does show that the seals of the articles as put at the time of recovery/seizure have been broken with the result that the Forensic Laboratory report looses its significance. Next contention is that in the recovery memo of remaining stock of alcohol does show that therein the Investigating Officer has mentioned the alcohol to be adulterated intoxicant Diazepam, mention of this fact shows that the investigation was tainted. It is then contended that in that view of the matter, all other filling material relied upon by the prosecution, by itself does not establish involvement of the appellant in the guilt, and the conviction is liable to be set aside. 8. The learned Public Prosecutor, duly assisted by the learned counsel for the complainant, on the other hand supported the findings of the learned trial court, and contended that if the deceased did not have illicit relation with the mother of the appellant, the mother could very well have been examined in defence, to negative the motive, but she has not been examined and thus the learned trial court was right in concluding, on the evidence led by the prosecution that it is established. Likewise it is also contended that present case rests on circumstantial evidence, and since it is a cold blooded murder, wherein the accused developed pseudo friendship with the deceased, and then availed the opportunity of taking the victim to his house to take revenge, and thereafter availing that opportunity, and taking advantage of alcohol addiction of the appellant, administered heavy quantity of Tranquilizers, so as to work as a poison, and after victim had become unconscious, very cleverly dropped him at the house of the victim. It is in this background that Ex.P-1 and P-2, if read together establishes that the deceased died of Diazepam, and thus the appellant has rightly been convicted. 9. It is in this background that Ex.P-1 and P-2, if read together establishes that the deceased died of Diazepam, and thus the appellant has rightly been convicted. 9. We have considered the rival submissions and have gone through the entire evidence of the prosecution. 10. P.W. 1 Gurjit Singh, is the witness in whose Jeep the victim was carried to the hospital in an intoxicated unconscious, condition and has deposed in cross examination that alongwith Atma Singh, Suhava Singh, Atma Singh's mother, and younger brother Ramesh Singh, were also there in the Jeep, but Atma Singh was speechless, and that enroute Atma Singh was not administered any liquid, not even water etc. Thus this evidence is wholly innocuous for the prosecution. 11. P.W. 2 is the Doctor, who was a Member of the Medical Board, and had conducted the post mortem examination. Since it is not seriously disputed that the deceased died of asphyxia, resulting from administration of Diazepam, his statement need not detain us much. 12. Then P.W. 3 Suhava Singh is the informant and the father of the deceased. This P.W. 3 has deposed that, on the date of incident at about 4 P.M. Kulwant Singh had taken Atma Singh to the former's house. He has also deposed that, there was some dispute earlier also between him and Kulwant Singh, and that at about 8 PM. Kulwant Singh dropped Atma Singh near his house, in a unconscious condition, then when Atma Singh was being carried to hospital, he died enroute, whereupon he lodged a Marg report Ex.P-3. According to him on the next day, at 12 Noon Jogender Singh came to him and informed about Kulwant Singh having administered liquor to Atma Singh, which resulted into his death. Similarly Vajir Singh also came to the hospital, and informed that, in the night when he had gone to Kulwant's house to fetch liquor, Kulwant Singh was administering liquor to Atma Singh. Thereafter he moved application in the Police Station Raisinghnagar, to register a case which is Ex. P 4. From this examination in chief what appears significant to note is that, according to this P.W. 3, Jogendra Singh did not disclose Kulwant Singh having made any extra judicial confession before him. Be that as it may, in cross examination the witness has deposed that, Atma Singh lives separately, and is issueless. P 4. From this examination in chief what appears significant to note is that, according to this P.W. 3, Jogendra Singh did not disclose Kulwant Singh having made any extra judicial confession before him. Be that as it may, in cross examination the witness has deposed that, Atma Singh lives separately, and is issueless. He has admitted that a day earlier some incident had taken place between him and Atma Singh, but then it was at the behest of the appellant, and for that incident Atma Singh had lodged a prosecution against him. In that incident Atma Singh and wife of Atma Singh's brother Ramesh Singh had also received injuries, for which he had lodged a prosecution against Atma Singh. He has also deposed that in view of the incident of earlier day Atma Singh's wife Gurmit Kaur had gone to her parental house. Then the witness had deposed that, on the day of the incident in question, at about 2-3 P.M. he had gone to fetch crass, and returned at about 5-6 PM. only, and thereafter at about 8 PM. the appellant had dropped Atma Singh, at which time Ramesh Singh and his wife were there in the house. 13. Thus, it also becomes clear from this admission of this witness that, he did not see Kulwant Singh taking away Atma Singh. Then on being further cross examined he has deposed that at 10 PM. they reached Raisinghnagar hospital, some 5-6 persons had gone to fetch Atrna Singh's wife which included Gurmukh Singh, Vajir Singh etc. but did not include Jogender Singh. He has then deposed that Gurmit Kaur had come at 10-11 A.M. and suspected him to have killed Atma Singh. The witness has then deposed that, S.H.O. had given a slap to the father of the accused, whereupon he confessed that Kulwant Singh had taken Atma Singh and administered alcohol to him. He has then deposed that he lodged a second report (Ex.P 4) at 10 A.M., and that Gurdev Singh and Jogender Singh (PW. 6) had come after he lodged the report. Though as found above, according to the informant these two witnesses had come before he had lodged the report. 14. He has then deposed that he lodged a second report (Ex.P 4) at 10 A.M., and that Gurdev Singh and Jogender Singh (PW. 6) had come after he lodged the report. Though as found above, according to the informant these two witnesses had come before he had lodged the report. 14. Then coming to the evidence of P.W. 4 Vajir Singh, he has deposed that at about 7-7.15 PM., he had gone to the house of Kulwant Singh to fetch liquor, as Kulwant Singh used to vend liquor. At that time he found Atma Singh and Kulwant Singh sitting on the cot in the Bethak Room, and Kulwant Singh was administering alcohol to Atma Singh. He has also deposed that Atma Singh was high on alcohol. Then on next morning he learnt that Atma Singh became intoxicated and died. Thereafter he went to Raisinghnagar hospital and made a disclosure to Suhava Singh. In cross examination he has deposed that, he had gone to hospital at 11-12 A.M., by which time Atma Singh's wife had come. He has then admitted that he has left consumption of alcohol for last 5-6 years, and during the period of incident he did not use to consume alcohol. He has then admitted that Atma Singh and Kulwant Singh were both carrying the job of distillation and used to consume it together. According to him Atma Singh used to take liquor every day. 15. From a perusal of the statement of this witness it is clear that according to his own version, he had no occasion to go to the house of Kulwant Singh to fetch alcohol, as he had already left the consumption of alcohol, and does not even purport to give out any purpose for which he wanted to fetch liquor from Kuiwant. The other significant thing emanating from his evidence is that, Atma Singh and Kulwant Singh were collectively carrying on the job of illicit distillation, and were consuming liquor, so also that Atma Singh was a regular alcohol addict, inasmuch as he was consuming it everyday. Thus, from his statement, even if it were to be assumed that on the fateful day Atma Singh was at the house of Kulwant Singh, and was consuming liquor, it is wholly innocuous circumstance. Be that as it may. 16. Thus, from his statement, even if it were to be assumed that on the fateful day Atma Singh was at the house of Kulwant Singh, and was consuming liquor, it is wholly innocuous circumstance. Be that as it may. 16. P.W. 5 Balvir Singh, is the witness of recovery of half consumed bottle of liquor, steel glass, and the remaining stock of Diazepam pills. His evidence we propose to discuss later, if necessary. 17. Then, we come to the most important, rather star witness, P.W. 6 Jogender Singh. His examination in chief is very brief, and has deposed that about 3 years back, he was at his house. In the morning at about 7-7.30 A.M. Kulwant Singh came to his house in a perturbed state, and asked him as to whether he would not serve tea, whereupon the witness readily offered. Then the appellant is said to have divulged to have killed Atma Singh in the night. Kulwant Singh has further alleged to have divalged Atma Singh to be having illicit relations with Kulwant Singh's mother and sister, therefore, he administered tranquilizers in the liquor, and killed Atma Singh, and thus he has taken revenge. Thereafter Kulwant Singh went away from that place. Then the witness went to Raisinghnagar hospital, and made a disclosure to Suhava Singh. This is the entire examination in chief. On being cross examined the witness has admitted that Kulwant Singh did not say anything else than what has been deposed by him in examination in chief. Then he was confronted with the omission in his previous statement under Section 161, being Ex. D-1, wherein it was not mentioned that Kulwant Singh divulged to have killed Atma Singh. The witness admitted to have given statement in police, but then asserted to have deposed it to the police, and cannot say any reason, as to why it has not been mentioned. Thus the fact remains that it has not been deposed by the witness to the police that Kulwant Singh confessed before him to have killed Atma Singh. The witness has then deposed that, when Kulwant Singh came, all his family members were available in the house, but then Tea was served in the Bethak Room, where his father, brother etc. were not available. The witness has then deposed that, when Kulwant Singh came, all his family members were available in the house, but then Tea was served in the Bethak Room, where his father, brother etc. were not available. He has admitted, Suhava Singh to be his distant relation, but deposed ignorance about any incident having taken place between Suhava Singh and Atma Singh, either some 4-5 days before, or on 8.7.95. He further deposed that, Kulwant Singh also did not disclose about any incident. Then improving upon the version, lie deposed that, Kulwant Singh had informed that some incident occurred between Atma Singh and his brothers, and this fact was disclosed by Kulwant Singh in the morning. In order to attempt to reconcile the inconsistencies, the witness has taken the stand that he deposed the ignorance about the incident, because he was not personally aware of the incident. He deposed to have reached the hospital at 12-12.15 noon, and to have immediately disclosed to Suhava Singh on reaching hospital, and that at that time police people were not there. He had then deposed that, the police people may be in the hospital but ne neither met police people, nor disclosed anything to them. His statement was recorded by the police on 12th. He further deposed that he had disclosed this fact to Atma Singh's wife also, and that though the relatives of Atma Singh's wife were also there with her, but he did not disclose it to them. 18. A proper comprehension of this statement does show that, the version given out by the witness is wholly unnatural, inasmuch as the witness has not deposed in the examination in chief as to what was the occasion for Kulwant Singh to come to the witness, and make confession. Then to get over this difficult situation, in cross examination the witness has of course improved, by stating that he had friendship with Kulwant Singh, and that Kulwant Singh had no friendship with anybody else, in the village. It may be noticed here that there is a vast age difference between the age of two persons i.e. the witness and the accused, inasmuch as the accused is a teenager while the witness is forty plus. Then the manner in which the whole sequence is said to have taken place, viz. It may be noticed here that there is a vast age difference between the age of two persons i.e. the witness and the accused, inasmuch as the accused is a teenager while the witness is forty plus. Then the manner in which the whole sequence is said to have taken place, viz. arrival of Kulwant Singh in a perturbed condition, asking for tea, and on serving tea to have straightway made confession, so also disclosing motive, and to have left the place immediately after making confession, shows as if one should believe that, the appellant had come to the witness solely for the purposes of making extra judicial confession. The witness admits to be a relation of Suhava Singh, and according to this witness, Kulwant Singh had also disclosed that an incident had taken place on 8.7.95, between Atma Singh and Suhava Singh, Kulwant Singh's house is said to be at a distance of 250 yds. from the house of witness, while according to Ex.P. 4, Kulwant Singh is the neighbour of Atma Singh. In these circumstances there is nothing appearing from the statement of this witness P.W. 6, as to in what confidence, or on what assurance of secrecy, the appellant felt persuaded to make an extra judicial confession and that also even without any question being asked by the witness. The question also requires to be considered then is, as to what precise was the confession made,? as in the very first sentence of cross-examination, the witness has deposed that, Kulwant Singh did not disclose anything else than what has been deposed by him in examination in chief, and then in the police statement Ex.D. 1, it is not mentioned that Kulwant Singh disclosed to have killed Atma Singh. Thus, the very crucial fact of the appellant having made the confession is absent. These circumstances, if considered in conjunction with further admissions of the witness in cross examination, about Kulwant Singh to have also disclosed to the witness about earlier incident, that took place between Atma Singh and Suhava Singh, shows that the witness is deposing as may suit the convenience, in the given set of circumstances. These circumstances, if considered in conjunction with further admissions of the witness in cross examination, about Kulwant Singh to have also disclosed to the witness about earlier incident, that took place between Atma Singh and Suhava Singh, shows that the witness is deposing as may suit the convenience, in the given set of circumstances. Similarly on a perusal of the statement of Suhava Singh, it transpires that the expressions said to have been used by the appellant constituting extra judicial confession is not consistent, which is one of the basic requirements in order to inspire confidence in the alleged extra judicial confession. Likewise as noticed earlier that, Suhava Singh has clearly admitted that, this witness Jogender Singh, had come to the hospital after Suhava Singh had lodged a report at 10 A.M., he further admits that, the disclosure was made by Jogender Singh to him after he had lodged the report. Still in the report Ex.P-4, there is a recital about Jogender Singh having made disclosure to Suhava Singh, about the extra judicial confession made by Kulwant Singh to Jogender Singh. It is a different story that, as observed above, the exact words said to have been uttered by Kulwant Singh to Jogender Singh, as appearing in the statement of P.W. 5, and as appearing in Ex.P 4, are materially different. Thus on the face of such inconsistent state of affairs, we feel that, it would not be safe to believe the evidence of Jogender Singh, about Kulwant Singh having made extra judicial confession, on its face value. 19. The next witness is Ramesh Singh, P.W. 7, the brother of Atma Singh. He has deposed that, at about 5-5.30 P.M. Kulwant Singh called Atma Singh. At that time the witness, his father Suhava Singh, mother Paro Bai, his wife, so also his sister Jito Bai, were all there at the house, and since Kulwant Singh 'and Atma Singh used to consume liquor together, they did not take any exception. According to the witness, at about 8-8.30 P.M. Kulwant Singh dropped Atma Singh near the door of their house. Atma Singh fell down, and then his father went to see Atma Singh and found Atma Singh unconscious, and was taken to hospital, and enroute he expired. According to the witness, at about 8-8.30 P.M. Kulwant Singh dropped Atma Singh near the door of their house. Atma Singh fell down, and then his father went to see Atma Singh and found Atma Singh unconscious, and was taken to hospital, and enroute he expired. According to the witness, on the next day Jogender Singh came to the hospital, and disclosed that, in the morning Kulwant Singh had come and disclosed that he has taken the revenge by administering tranquilizer pills by mixing them with alcohol, and also disclosed the motive. In cross examination he has admitted that he, Atma Singh and Suhava Singh were all on litigating terms as there were counter criminal cases pending between them He has also deposed that, after that incident of beating between the brothers and father, Atma Singh's wife had left for her parental house. He has deposed that only Dilip had accompanied the driver in the Jeep, which was sent to fetch Gurmeet Kaur the wife of Atma Singh. 20. This witness in our opinion is also of not much consequence, in view of the fact that even according to this witness, since Kulwant Singh.and Atma Singh used to consume liquor together, his being taken by Kulwant Singh was a wholly innocuous event. However, from his evidence this much is clear that, the relations between the father and brothers were not cordial rather they were on physically fighting, and criminally litigating terms. Similarly a day prior to the incident, Atma Singh's wife had left for her parental house, on account of the incident that took place between Atma Singh and his father and brothers. 21. At this place we find it also significant to note here that it is not in dispute that, in the criminal case lodged by Suhava Singh etc. apart from Atma Singh, Kulwant Singh is also co-accused, and in the report Ex.D. 4 lodged by Atma Singh against Suhava Singh etc., Kulwant Singh's father is a witness to support Atma Singh, which not only shows that qua Ramesh Singh and Suhava Singh, Kulwant Singh and Atma Singh were one, living in the opposite camp but this by itself also strikes at the root of the existence of the alleged motive being about the deceased having illicit relations with the mother and/or sister of the accused appellant. 22. 22. Then P.W. 8 is the Circle Inspector, who undertook part of the investigation, and is a witness of site inspection, recovery of certain articles from the spot. 23. Then P.W. 9 and 10 are the witnesses, to prove the articles examined by Forensic Science Laboratory, remaining intact from the time of their seizure, till reaching of the Forensic Science Laboratory. P.W. 11 is the Circle Inspector who took proceeding on receipt of Marg report Ex.P. 2, and also undertook remaining part of the investigation including recoveries etc. This witness has proved the fact of other prosecutions/ cross prosecutions having been launched between Atma Singh and Suhava Singh etc. 24. At this place we may also notice the fact that, as appears from the evidence of Ramesh Singh, P.W. 7, that the family was on litigating terms, Atma Singh was an alcoholic addict, a day earlier, his wife had left the matrimonial home, for her parental house, as deposed by P.W. 4 that, Kulwant Singh and Atma Singh used to carry on distillation and also used to consume liquor together, and that Atma Singh used to consume alcohol every day, from these circumstances, this possibility is also not ruled out that, while following the habit of consuming alcohol every day, in view of added mental stress he might have chosen to have himself consumed some tranquilizers, which might have been readily available with Kulwant Singh, and which unfortunately may have resulted into his death, but then once the extra judicial confession is disbelieved, and existence of motive is also negatived, in our opinion, their remains no evidence on record, to show that the tranquilizer were administered by Kulwant Singh to Atma Singh, as a poisonous substance with intention to kill Atma Singh, so as to make out the offence under Section 302 I.P.C. against the appellant. 25. So far as the recovery of half consumed bottle of liquor, adulterated with Diazepam, empty steel glass, and 15 numbers of Diazepam pills, from Kulwant Singh is concerned, in our view, from that by itself, even if believed, it cannot be concluded that the charge is established against the appellant. We may taken notice of the fact that Diazepam is tranquilizer, and by itself is not a dangerous poison, unless of course it is taken in excessive quantity and by a person not used to tranquilizers. We may taken notice of the fact that Diazepam is tranquilizer, and by itself is not a dangerous poison, unless of course it is taken in excessive quantity and by a person not used to tranquilizers. In that view of the the matter in absence of any evidence, even in the form of Ex.P. 2, about the extent of concentration of Diazepam in the liquor recovered, even if we were to make impermissible wild guess, we are unable to guess that, the consumption/administration of liquor by or to Atma Singh with the requisite intention or knowledge. 26. The net result of the aforesaid discussion is that; we are unable to sustain the conviction for want of reliable, convincing and sufficient evidence, against the appellant. 27. Consequently, the appeal is allowed. The impugned judgment is set aside and appellant is acquitted. He, be released forthwith, if not required in any other case.Appeal Allowed - Conviction Set Aside. *******