JUDGMENT 1. - On finding the dead body of Rameshwar it was revealed that the appellant and Rameshwar together consumed liquor and thereafter Rameshwar was tied with a rope from the neck, dragged and done to death. The appellant was placed on trial and the learned Special judge and Additional Sessions Judge Aiwar convicted and sentenced the appellant under Section 302/34 IPC vide judgment dated November 25,1999. 2. The foundation of prosecution is based on a written report (Ex.P - 1) lodged by Man Singh (PW-1) on October 16, 1996 at 7.45 AM with the Police Station Khedi (Alwar). It was inter alia stated in the report that on October 16, 1996 at around 7- 8:00 PM the appellant came to his house and told his elder brother Rameshwar (deceased) that Ramesh Keer and Bijjo Gurjar calling him near the primary school. Rameshwar then accompanied the appellant. After being awakened in the next morning when the informant did not find Rameshwar in the house, he became worried and proceeded to search Rameshwar in the village where Prahlad Singh Rajput met him and informed that at around 9 - 10 PM in the preceding night he had seen Rameshwar, Ramesh Keer, Jai Singh and Bijjo Gurjar near the primary school. This narration was also confirmed by Kailash Meena who had seen Ramesh Keer, Bijjo Gurjar and the appellant giving beating to Rameshwar near the primary school. When the informant reached near the primary school he found dead body of Rameshwar lying there. 3. On the basis of the said report the Police Station Khedli registered a case under Section 302/34 IPC and investigation commenced. Formal FIR then was chalked out, site inspection memo and inquest report were drawn. Autopsy on the dead body was conducted. Statement of witnesses under Section 161 Cr.PC. were recorded, appellant was arrested and at his instance wrist watch allegedly belonged to the' deceased got recovered and on completion of investigation charge sheet was filed. 4. In due course the case came up for trial before the learned Special Judge and Additional Sessions Judge Alwar. The charges under Section 302 alternatively 302 read with 34 IPC and Section 3/5 of SC/ST (PA) Act, 1989 were framed against the appellant who denied the charges and claimed trial. The prosecution in support of its case examined as many as 15 witnesses and got exhibited 34 documents. The charges under Section 302 alternatively 302 read with 34 IPC and Section 3/5 of SC/ST (PA) Act, 1989 were framed against the appellant who denied the charges and claimed trial. The prosecution in support of its case examined as many as 15 witnesses and got exhibited 34 documents. In the explanation under Section 313 Cr.PC. the appellant claimed innocence and stated that he was falsely implicated on account of enmity of election. He denied to have any liquor shop and on the date of incident he was not in the village. The appellant examined himself and Udaiveer Singh in support of his defence. Learned Trial Judge on hearing the final submissions convicted and sentenced the appellant as indicated hereinabove. 5. In order to appreciate the rival submissions of the learned counsel appearing on either side and the legality and correctness of the findings recorded a brief narration to the relevant materials necessary. 6. The foundation of the prosecution case is mainly based on the testimony of Kailash (PW.2) and Deepan (PW.3) who have been examined as eye witnesses of the occurrence. Then comes the testimony of Man Singh (PW 1), Natthi (PW 5), Prahlad Singh (PW 6), Hotri Dutt Awasthi (PW 7) and Gulab Singh (PW 14). Recovery of wrist watch of the deceased at the instance of the appellant is the another connecting, evidence which is supported by the I.O. Gulab Singh (PW 14) and Ram Swaroop (PW 10) 7. Homicidal death of Rameshwar is not disputed and as per autopsy report (Ex.P - 15) following injuries were found on the dead body:- (1). Lacerated wound on scalp Lt. Parietal eminance size 6 cm. x 1 cm. x brain deep with ante mortem haematoma. (2) Depressed : skull on Lt. parietal eminance with tissue staining size 3 cm. x 1 cm. (3) Face - crush injury lacerated wound 12.5 cm. x 9 cm. Rt. eye protruded Lt. eye closed and depressed. Nose crushed, mouth crushed with jaw broken. maxilla, nasal bone, mandible. No tissue staining. No haematoma injury is post mortem in nature. (4) Neck - One linear abrasion mark just below thyroid cartilag on Rt. lateral size, reddish colour, horizontal. No underlying haematoma is seen under tissue size 9 cm. x 1 cm.One linear abrasion mark 2.2 cm above thyroid cartilag on Rt. Lateral size, reddish colour, horizontal.No underlying haematoma size 5 cm x 0.8 cm. (4) Neck - One linear abrasion mark just below thyroid cartilag on Rt. lateral size, reddish colour, horizontal. No underlying haematoma is seen under tissue size 9 cm. x 1 cm.One linear abrasion mark 2.2 cm above thyroid cartilag on Rt. Lateral size, reddish colour, horizontal.No underlying haematoma size 5 cm x 0.8 cm. (5) Back (a) Bruise - Rt. rub scapula region 12 cm x 8 cm reddish blue. (b) Bruise - Lt. rub scapula region 12 cm x 5 cm reddish blue. (c) Bruise - Lt. Loin Orrally 12 cm x 5 cm reddish blue. (6) Rt.arm - Lacerated wound muscle deep, dorsal side of middle 1 /3rd with dried clotted blood reddish size 1 cm x 0.5 cm. (7) Lt. thigh Bruise on ventral side 14.5 cm. vertically below Lt. anterior superior iliac spine, reddish blue, size 10.5 cm. xl 4.2 cm. 8. On analysing the testimony of Man Singh (PW.1) we find that he is real brother of deceased. Supporting the versions narrated in the written report he deposed that on October 15, 1996 Rameshwar had gone with the appellant around 7 - 8.00 PM. In the next morning when he got awakened around 3 - 4 AM, he did not find Rameshwar in the house, he became worried and forthwith proceeded towards village in search of Rameshwar. Prahlad met him in the village and informed him that he had seen Rameshwar alongwith the appellant and Ramesh Keer around at 11 - 12 hours in the preceding night near the liquor shop. Natthi, his maternal uncle also confirmed that around 12 Hours in the proceeding night he had seen Ramesh Keer and the appellant near the primary school. Man Singh further stated that after dead body of Rameshwar was found. Kailash came there and stated that he had seen the appellant and Ramesh inflicting injuries on the person of Rameshwar around 11.00 PM in the preceding night. Exonerating Bijjo Gurjar against whom allegations were levelled further stated that although in Ex.P-1 he wrote in the report, Man Singh stated that Bijjo Gurjar was not involved in the occurrence and he therefore handed over a report (Ex.D - 3) to this effect to the police. 9. Kailash PW 2 deposed that on October 15, 1996 he accompanied Jai Singh and Rameshwar to the liquor shop where Ramesh Keer was present. 9. Kailash PW 2 deposed that on October 15, 1996 he accompanied Jai Singh and Rameshwar to the liquor shop where Ramesh Keer was present. Deepan was the salesman in the liquor shop, which belonged to Jai Singh. At the liquor shop Jai Singh, Ramesh Keer and Rameshwar consumed liquor and started quarrelling. Suddenly, Rameshwar Keer inflicted iathi-biow on the back of Ramesh and Jai Singh gave another lathi blow on his head. A rope then was tied on the neck of Rameshwar and he was dragged by Jai Singh and Ramesh Keer. When he (Kailash) made attempt to intervene, he was pushed down by Ramesh. Around 9.00 PM he and Deepan both fled away. In his cross examination he admitted to have resided just opposite the house of Man Singh. He also admitted that Jai Singh contested election of Up-sarpanch and was declared elected. He further admitted that he takes liquor and once he appeared as witness in a murder case. He further stated that in the morning he had gone to the house of Man Singh awakened and narrated him the whole incident. When he was confronted with his police statement Ex.D - 1, he stated that he had informed the police that Ramesh Keer pushed him down to the ground but why this fact was not written in the police statement, he did not know. 10. Deepan (PW 3) verbatim repeated the version deposed by Kailash but in the cross examination he however stated that Jai Singh came to the liquor shop at around 7.00 PM, whereas Rameshwar and Kailash reached there at around 8.30 PM and Ramesh came thereafter. He further stated that when Kaiiash and Rameshwar came to the liquor shop they had already consumed liquor. All the four then sat together at the liquor shop and consumed the liquor till 10.00 PM. It also appears that Deepan also earlier appeared as a witness in a murder case and there is nothing on record to show that when Deepan was not named as witness in the FIR, how the I.O. came to know that Deepan was the eye witness of the occurrence. 11. Following fact situation emerges from the aforequoted statements:- (i) According to Man Singh he got awakened at 3 - 4.00 AM and immediately proceeded to village in search of Rameshwar. 11. Following fact situation emerges from the aforequoted statements:- (i) According to Man Singh he got awakened at 3 - 4.00 AM and immediately proceeded to village in search of Rameshwar. He did see Kailash only after the dead body of Rameshwar was found. Whereas Kailash stated that he went to the house of Man Singh in the morning and found Man Singh sleeping. He then got Man Singh awakened and informed about the incident that occurred on proceeding night. (ii) In the written report (Ex.P - 1) Man Singh named Bijjo Gurjar as assailant, but subsequently but vide report Ex.D - 2 which was submitted by him to the police he exonerated Bijjo Gurjar and stated that only Ramesh and appellant committed murder of Rameshwar. (iii) Kailash kept mum throughout the night. Neither he informed about the incident to any body nor he lodged the report with the police. He made improvement in his statement at the trial. In the police statement Ex.D - 1, he did not say that when he intervened, he was pushed down by Ramesh and he sustained injuries. He admitted that he takes liquor and earlier also appeared as a witness in a murder case. (iv) Deepan (Pw.3) was not named in the FIR. According to Kailash, he and deepan fled away from the liquor shop after seeing the accident at 9.00 PM whereas Deepan states that Jai Singh, Rameshwar, Kailash and Ramesh consumed liquor till 10.00 PM. (v) As per autopsy report and the statement of Dr. Rahul Gupta (PW.8) alchohal was not found in the body of the deceased. (vi) According to Kailash and Deepan, the appellant and Ramesh had tied rope on the neck of Rameshwar and dragged him whereas Dr. Rahul Gupta (PW.8) stated that injury No. 4 found on the neck of the deceased was not the result of dragging by dieing rope on his neck. (vii) According to Deepan (PW.3) Jai Singh came alone around 7.00 PM at the liquor shop and Rameshwar and Kailash came together later at around 8.30 PM. Whereas Kailash deposed that Rameshwar and Jai Singh came together to the liquor shop. (viii) According to Man Singh immediately after he found the dead body of Rameshwar, Kailash reached there and informed him about the incident occurred in the proceeding night. Whereas Kailash deposed that Rameshwar and Jai Singh came together to the liquor shop. (viii) According to Man Singh immediately after he found the dead body of Rameshwar, Kailash reached there and informed him about the incident occurred in the proceeding night. Whereas Kailash in his cross examination deposed that he did not see the dead body of Rameshwar. (ix) The appellant contested election and elected as Up-sarpanch. 12. A look at the statements of Natthi (PW.5), Prahalad Singh (PW.6) and Hotri Dutt Avasthi reveals that they are interested witnesses and they have made an attempt to establish that they had seen appellant Ramesh and Rameshwar together on the night of October 15,1996. Prahalad Singh's father Shiv Dayal Singh was murdered and Ram Babu Singh and Ratan Singh were convicted for the said charge of murder. Appellant is related to Ram Babu Singh and Ratan Singh. 13. Having carefully gone through the evidence of Kailash (PW.2) and Deepan (PW.3) in the light of other material on record, we have no hesitation in concluding that both the witnesses deposed falsely. The evidence of these witnesses cannot be relied upon, firstly, because of their unnatural conduct in not informing anybody about the incident; secondly, because their are major contradictions in the statements of Man Singh (PW.1) and Kailash Singh (PW.2) ; thirdly, because Deepan (PW.3) was not named in the FIR and the I.O. could not establish this fact as to how he came to know that Deepan was eye witness of the occurrence ; fourthly, relations of the appellant with the prosecution witnesses were inimical. The appellant was Up-sarpanch and it could not be established that on the date of incident, he owned a liquor shop; and lastly, from the medical testimony it could not be proved that before his death Rameshwar had consumed liquor and he was dragged by the appellant by dieing a rope over his neck. 14. We also do not find the alleged recovery of wrist watch of the deceased at the instance of the appellant as trustworthy. It is difficult to believe that the appellant would keep the wrist watch belonging to the deceased and got it recovered. There is yet another reason to discard this evidence. According to Man Singh it was his wrist watch which he gave to the deceased but this fact was not mentioned in the FIR. 15. It is difficult to believe that the appellant would keep the wrist watch belonging to the deceased and got it recovered. There is yet another reason to discard this evidence. According to Man Singh it was his wrist watch which he gave to the deceased but this fact was not mentioned in the FIR. 15. learned Trial Judge has not properly appreciated the material on record and committed illegality in convicting and sentencing the appellant. The prosecution has failed to establish the guilt against the appellant beyond reasonable doubt. 16. In the result we allow the appeal and the impugned judgment dated November 25, 1999 passed by Special Judge and Additional Sessions Judge Alwar is set aside and the appellant Jai Singh is acquitted of the charge under Section 302 read with 34 IPC. The appellant is in jail. He shall be set at liberty, if not required in any other case.Appeal Allowed. *******