JUDGMENT 1. - Heard learned counsel for the parties. 2. This appeal has been preferred to challenge the judgment and order dated 24.7.2002 passed by learned Additional Sessions Judge, Nathdwara in Sessions Case No.3/2002 by which the learned trial court convicted appellant Rupa s/o Kanna b/c Gameti r/o Balaliya-Jhalo Ki Madar, PS Khamnor, District Rajsamand under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life with a fine of Rs.200/- and in default of payment of fine to undergo 2 months' simple imprisonment. 3. Brief facts of the case are that one Rama s/o Wala Bhil r/o Negdiya - PW11 submitted a written report Ex.P/7 on 25.6.2001 at Police Station Khamnor stating therein that his son Raju, who was unemployed and was doing no work, was scolded by him, then since last 2-3 days, he has not returned to the house. On enquiring, he came to know that on 24.6.2001, Raju was wandering near the Bus Stand and took a bicycle on rent. The complainant came to know that his son's dead body is lying near the road at Jhalon Ki Madar - Rebariyon Ki Dhani. The complainant went on spot and found that his son was lying dead with injury on head of his son Raju and blood was oozing out. He reported that some unknown persons have killed his son Raju. On the above report, FIR No.97/2001 and the case under Section 302 IPC was registered. During investigation, post mortem was got conducted and post mortem report Ex.P/4 was obtained. Near the place of incident, one plastic bag with blood stains, one bicycle were seized. As per Ex.P/35, a photograph of one lady was found in the pocket of deceased and one "Gilol" (a local short of weapon to throw small stone with force to save crops from birds or to kill birds), handkerchief and some pieces of glass were also found near the deceased which were seized. The statements of witnesses were recorded. One Bhima submitted one document Ex.P/5 which is said to be a document of settlement for "Nata" marriage of the accused. The information given by the accused under Section 27 of the Evidence Act - Ex.P/18 and recovery memo Ex.P/19 were also produced by the prosecution. FSL report Ex.P/25 was also produced. 4. Charge under Section 302 IPC was framed against the accused/appellant who denied the charges and sought trial. 5. The information given by the accused under Section 27 of the Evidence Act - Ex.P/18 and recovery memo Ex.P/19 were also produced by the prosecution. FSL report Ex.P/25 was also produced. 4. Charge under Section 302 IPC was framed against the accused/appellant who denied the charges and sought trial. 5. At the trial, the prosecution produced PW1 Bhola, PW2 Bagga, PW3 Govind Prasad, PW4 Dr. Anju, PW5 Kishan Lal, PW6 Bhima, PW7 Rakesh, PW8 Deva, PW9 Ratan, PW10 Nana Lal, PW11 Ram Lal, PW12 Rajeng, PW13 Kesha, PW14 Mohd. Yunus, PW15 Shankar Lal Rao, PW16 Dinesh Sukhwal, PW17 Bhanwar Singh, PW18 Ram Lal and PW19 Kodar Lal. 6. The statement of accused appellant was recorded under Section 313 CrPC but he did not produce any witness in defence. He stated that he was not present in the village and at the relevant time, he was in the State of Madhya Pradesh and he has been involved falsely. 7. The trial court by the impugned judgment convicted the appellant on the basis of circumstantial evidence as there was no eye witnesses to the incident. 8. The prosecution story is that the accused appellant contacted Nata marriage with one Smt. Naru who already had a child of one year. At the instance of Naru's Ex-husband Babu Lal Bhil, victim Raju came searching Smt. Naru. In this sequence, carrying the photograph of Smt. Naru, Raju reached to the house of the accused appellant. At that time, Kishan Lal, accused appellant's sister's son and one Kesha PW13 were present in the house of accused. Since nobody was knowing said Raju and when they enquired from where and for what purpose, Raju has come to that place, Raju told that he came there to pay some money to 'khatik' but he is not having the full address of that person. When the appellant told Raju that he is not knowing him, then Raju called Naru as Jiji (sister). However, on enquiry, Naru - appellant's wife stated that she is not knowing said boy. The appellant asked Raju to leave his house but PW5 Kishan Lal and PW13 Kesha asked the appellant to let Raju live in the house but the appellant did not allow him to stay in the house. However, on enquiry, Naru - appellant's wife stated that she is not knowing said boy. The appellant asked Raju to leave his house but PW5 Kishan Lal and PW13 Kesha asked the appellant to let Raju live in the house but the appellant did not allow him to stay in the house. As per the prosecution case, it appears that the appellant was not interested that Raju may know about his wife Smt. Naru as he would inform it to Naru's Ex-husband - Babu Lal. The prosecution also set up the story that Babu Lal himself came to the appellant's village in search of his wife and children and in the same sequence, he sent Raju to search Naru in the village. Raju was murdered in the same night when he came in the village of the appellant and that is proved from the medical evidence and post mortem report. According to PW6 Bhima, uncle of appellant, the appellant and Smt. Naru both left for Madhya Pradesh on the next day morning. It is the case of prosecution that Raju was killed by hitting a stone on his head and said stone was recovered from the appellant's house. As per the FSL report, the stone, shirt and plastic bag and other stones which were recovered from near the place of incident, all had human blood stains. The stone by which Raju was killed and which was recovered from the appellant also had stains of human blood of B Group. 9. Learned counsel for the appellant vehemently submitted that the appellant has wrongly been implicated in this crime and there is no iota of evidence for commission of offence by the appellant. It is also submitted that the entire story implicating the appellant is concocted one and it cannot be believed that any person if will kill other person by any stone, then he will bring that stone to his house and keep it in the house for a period of about 3 months as according to the prosecution, the incident took place in the night of 24.6.2001 whereas, as per the prosecution, the information under Section 27 of the Evidence Act was given by the appellant to the police on 3.10.2001 after more than 3 months and the stone has been shown to be recovered from the house of the appellant in pursuance of said information. As per the prosecution witness PW1 Bhola, he did not identify the stone which was alleged to have been recovered from the house of the appellant in pursuance of the information under Section 27 of the Evidence Act as it was not in the Court when the statement of Bhola was recorded. Bhola also stated that said stone was not sealed before him and the police took the stone from the house without putting it in any cover. PW1 Bhola and PW2 Bagga both stated that when they reached there, the house was opened and who opened the lock of the house, they were not knowing. As per seizure memo Ex.P/1, the stone had blood stains and that makes the story of prosecution to be a totally concocted one as no one will keep a blood stained stone - weapon of offence, in his house when admittedly, on the spot where the dead body was lying, there were several stones which were also blood stained. As per Ex.P/3, site report, the prosecution projected that the deceased Raju was murdered by hitting several stones, then what would have been the reason for bringing one stone by any person to his house so that it may be recovered by the police even after months. 10. According to learned counsel for the appellant, recovery of photograph of lady from the pocket of deceased also cannot connect the appellant with the crime apart from the fact that it has not been proved that the photograph was recovered from the pocket of the deceased and there cannot arise any question of keeping a photograph of lady in the pocket of boy who has been sent to search the lady and particularly, when the appellant and the accused are members of Scheduled Tribe and where nata marriage is prevailing very commonly. It is also submitted that the prosecution failed to prove that any person visited to the accused appellant's house in the evening of the relevant day and he is the same person Raju who was murdered. 11. It is also submitted that the prosecution failed to prove that any person visited to the accused appellant's house in the evening of the relevant day and he is the same person Raju who was murdered. 11. Prosecution witness PW4 Dr.Anju admitted that the injury which was found on the head of the deceased could have been because of falling of person on sharp stone and further stated that she did not saw any blood on the clothes of the deceased inspite of the fact that the clothes were removed by the police from the body of the victim in the presence of the doctors. Another doctor who conducted the post mortem is Dr. Govind Prasad Gupta PW3 who admitted that it is not mentioned in the post mortem report Ex.P/4 that what can be the time of the death of deceased. Contradicting the statement of PW4 Dr.Anju, PW3 Dr.Govind Prasad stated that at the time of post mortem, clothes of the deceased were stained with blood. In view of the above, there is every possibility that the victim might have fell down on the stones as he could not see the stones lying on the way on which he was going and might have died because of that reason. 12. Learned counsel for the appellant also submitted that the very basic fact that Babu Lal sent the deceased to search his wife has not been proved by the prosecution as there is no evidence on the record to prove this fact and the finding of the trial court that the victim went to search the wife of Babu Lal is based on assumption only. 13. Learned Public Prosecutor submitted that the deceased was last seen in the house of the appellant and the photograph of the wife of appellant was found in his pocket. The prosecution witnesses have clearly supported the prosecution case and proved the fact that the victim in fact came in the house of the accused appellant and the appellant wanted to hide this fact that Smt. Naru is his wife and Babu Lal should know it. It is submitted that there is no reason to disbelieve the statements of PW1 Bhola and PW2 Bagga who witnessed the recovery of the blood stained stones from the house of the appellant. It is submitted that there is no reason to disbelieve the statements of PW1 Bhola and PW2 Bagga who witnessed the recovery of the blood stained stones from the house of the appellant. It is also submitted that the doctors fully proved that the victim died due to injury on head. The injury was lacerated wound and it was sufficient to kill a man in ordinary course. It is submitted that there may be minor contradictions in the statements of two doctors but they are not material at all. Therefore, the trial court was fully justified in holding the appellant guilty of the offence under Section 302 IPC. 14. We considered the submissions of learned counsel for the parties and perused the reasons given by the trial court in the impugned judgment as well as the record. 15. So far as visit of victim Raju to the house of the appellant before he died in the incident is concerned, there is evidence of witness PW5 Kishan Lal, who is appellant's sister's son. He stated that he came to his maternal uncle's house and the appellant is also his maternal uncle. At about 8:00 PM in the night, one boy came there from whom he enquired about his village, then the boy told that he came from Nathuwas of Siad Village to make payment to one "Khatik" (Khatik is a caste). PW5 Kishan Lal then asked as to why he came to the appellant's house, then the boy told that the appellant is his brother-in-law (sister's husband), therefore, he came there. The appellant told that he is not knowing this boy. The appellant's wife was also not knowing the deceased and they told the victim to go away. PW5 Kishan Lal requested the appellant to let the victim stay in the house as where he will go in the night. Even thereafter, the appellant did not allow the boy to stay in the house and after some time, Kishan Lal found that the boy was not there. Kishan Lal also stated that he went to his other maternal uncle's house and he remained there for some time, then the appellant came to call him for dinner. At that time, the appellant had some doubt that someone is moving around his house but the appellant and Kishan Lal did not found anybody there. Kishan Lal also stated that he went to his other maternal uncle's house and he remained there for some time, then the appellant came to call him for dinner. At that time, the appellant had some doubt that someone is moving around his house but the appellant and Kishan Lal did not found anybody there. Kishan Lal stayed in the house of the appellant for whole night and in the morning, he left the house of the appellant. According to him, after 3-4 days, he found that one boy was found dead. After about 10 days, when the appellant met Kishan Lal, then Kishan Lal enquired what is the true story, then the appellant told that the boy who came to his place, died. In cross examination, Kishan Lal stated that when he asked the appellant about the boy who died in the incident, the appellant told that he does not know and this statement was given to the police by PW5 Kishan Lal with which he was confronted. In cross examination, he further stated that when the boy came to the house of the appellant, he was wearing black dress - both pant and shirt black. 16. Another witness who saw the victim in the house of the appellant is PW13 Kesha. He went to the house of the appellant for his daughter's engagement with the appellant's brother, at that time at about 7:00 PM, one boy wearing pant and shirt came there. He was asked by the appellant form where he came, then the boy told that he is residing near Nathdwara and he came there to pay some money to one 'Khatik'. The boy requested the appellant to allow him to stay in the appellant's house for night. The appellant told the boy that he is not knowing him and asked his wife also whether she is knowing the boy or not, then his wife told that she is not knowing him. The boy was taken in the house but he remained there for 5-7 minutes only and the boy left and thereafter witness PW13 Kesha also slept in the house of the appellant and left in the morning. After some days, he found that one boy died but he does not know whether the boy was the same who came to the house of the appellant or not. After some days, he found that one boy died but he does not know whether the boy was the same who came to the house of the appellant or not. He also stated that he did not hear that the same boy who came to the house of the appellant died in that incident. In cross examination, Kesha stated that he does not know the appellant's wife to whom the appellant married by Nata marriage. After seeing the photograph, he stated that the boy in the picture is similar to the boy who came to the house of the appellant. Kesha admitted that he did not saw the dead body. 17. On the basis of above witnesses only, it cannot be inferred that the boy who came to the house of the appellant was the same person who died in the incident and was Raju, the victim. Admittedly, if we accept the evidence of both these witnesses, then only fact proved by them is that one boy, whom they were not knowing and, that boy's identity was not known to them and they did not enquire about that boy's identity, came to the house of the accused appellant and the boy said that he came in the village to make payment to one Khatik. There is no evidence that deceased came to search Mst. Maru. Rather evidence is that the boy told the witnesses that he came to repay some money to one 'Khatik'. There is no evidence that the boy stayed in the village thereafter as both the witnesses stated that the boy left the house within 5-7 minutes only and both the witnesses stated that neither the appellant nor his wife were knowing the victim. Both the witnesses admitted that they took night meal with the appellant which they took after 8:00 PM as before that witness PW13 Kesha was in the house of his other maternal uncle. Both the witnesses have not stated that during night, the appellant went out of his house. This fact is relevant because of the reason that there is no eye witness and conviction has been made only on the basis of circumstantial evidence of last seen. Therefore, if accused was at his house in the night and has not gone out, then he could not have been on the place of incident in the night. This fact is relevant because of the reason that there is no eye witness and conviction has been made only on the basis of circumstantial evidence of last seen. Therefore, if accused was at his house in the night and has not gone out, then he could not have been on the place of incident in the night. There is no evidence for the fact that anybody saw accused going with victim nor there is evidence that anybody saw accused with victim after the first alleged meeting. 18. It is totally unsafe to rely on the statement of these two witnesses for the purpose of identifying the boy who visited the house of the appellant and the victim as the same person who is victim Raju as both the witnesses were not knowing the boy who came to the house of the appellant. 19. In addition to above, if we consider the evidence of prosecution witness PW8 Deva, he stated that Babulal himself came to search his wife Naru and even he stayed for whole of the night in the house of Deva. The same is the statement of PW9 Ratan who stated that Babu Lal in search of his wife came to his village and stayed at his brother's house. PW9 Ratan stated that Babu Lal said that the lady which has been brought by the appellant Roopa is his wife. However, in the next line, he resiled from his statement and stated that Babu Lal did not told him that the lady who is living in the house of appellant is his wife. Babu Lal also asked PW9 Ratan to search his wife. The appellant and witnesses Deva and Ratan all are living in the same small village and as per the statement of PW9 Ratan, Babu Lal was knowing the appellant also, then in that situation, it is difficult to believe that Babu Lal might have sent any other person including victim to search his wife. In addition to above, most important fact is that the prosecution did not choose to produce any evidence to prove that Babulal sent the victim to search his wife. For this prosecution case is case of no evidence. 20. .The witness PW6 Bhima who is resident of the same village and who is cousin uncle of the appellant, did not support the prosecution and was declared hostile. 21. For this prosecution case is case of no evidence. 20. .The witness PW6 Bhima who is resident of the same village and who is cousin uncle of the appellant, did not support the prosecution and was declared hostile. 21. In view of the above, the prosecution failed to prove that the victim was last seen with the appellant or in the house of the appellant. 22. At this place, it will further be relevant to mention here that the victim's father Ram Lal, PW11, in cross examination stated that when he saw his son lying dead, he was wearing different clothes than which were not of his son's cloth. He is witness to prove FIR and site report Ex.P/28, Ex.P/29 and Ex.P/30 by which the body of deceased was handed over to him. 23. It appears from the photographs Ex.7 to Ex.11 that the body of deceased was found lying on the heap of stones and his bicycle was lying nearby. Therefore, there were so many stones with blood stains near the body of the victim and the prosecution evidence about the recovery of blood stained stone from the house of the appellant after more than 3 months from the time of incident makes the entire story of the prosecution doubtful as there could not have been any reason for any person of ordinary sense that he will bring a stone stained with blood after killing a person in open field to his house and will hide and will keep for months together. That circumstance clearly show that the evidence has been created in this case to implicate the appellant. 24. In view of the above discussion, we are of the opinion that the prosecution failed to connect the accused appellant with the event of killing victim Raju in any manner. 25. Consequently, this appeal of the appellant is allowed, the judgment of the trial court dated 24.7.2002 is set aside and the appellant is acquitted from the charge of commission of offence under Section 302 IPC and he is entitled to be released forthwith.Appeal allowed. *******