JUDGMENT 1. - This appeal is directed against the judgment dated 26.6.2003 passed by the learned Additional Sessions Judge (Fast Track), No. 1, Dholpur in Sessions Case No. 55/2002 (Consolidated Sessions Case No. 135/2002) whereby he had convicted and sentenced the accused appellants; (i) Bheesham Singh, (ii) Pappu @ Hemant, and (iii) Kalua ) Hari Om for the offence under Section 302 I.P.C. and sentenced them for life imprisonment and a fine of Rs. 250/-, in default of payment of fine, to further undergo one month imprisonment. For offence under Section 201 I.P.C. and they were sentenced for three years rigorous imprisonment.The accused appellant Smt. Vajanti had been convicted for offence under Section 302 I.P.C. and sentenced for life imprisonment and a fine of Rs. 250/-, in default of payment of fine, to further undergo one month imprisonment. Both the sentences were directed to run concurrently. 2. Brief facts of the case are that one Anil Garg had lodged a report on 21.10.2001 at Police Station, Sepau, Distt. Dholpur. It was stated in the report that the informant was standing on the roof of his house at about 7.00 A.M. in the morning, and at that time he heard some hue and cry. He saw that accused- appellant Bheesam was sitting with his knee on the neck of Guddi and accused appellants Pappu . Hemant, Kalua ) Hari Om and Vajanti were beating her. Rambaran had also inflicted injuries. Thereafter, Guddi died ?nd she was cremated. The said report No. (200/2001) was registered by the police for the offences under Sections 147, 302 and 201 I.P.C.In furtherance thereof, the investigation commenced and on conclusion of the same, the police filed a challan against six persons on 26.1.2002 before the learned ACJM, Dholpur. As against accused appellants Pappu @ Hemant, Kalua @ Hari Om, challan was filed for offences under Sections 302 and 201 I.P.C., Smt. Vajanti for offence under Section 302 I.P.C. and against accused Shyam, Lakhan Singh, Girraj and Narendra for offence under Section 201 I.P.C. The case was then committed to the Court of Sessions, Dholpur.The Investigation was kept pending under Section 173(8) of the Code of Criminal Procedure against the remaining persons including the accused persons Bheesham and Rambaran. A supplement challan was then filed against the accused appellant Bheesham for offences under Sections 302 and 201 I.P.C. and against accused Raju, Lekhraj, Rajesh, Netram, Ganga Singh, Sannu @ Surendra, Rajbahadur, Dambar Singh and Rambaran for the offence under Section 201 I.P.C. before the learned ACJM, Dholpur. Thereafter the case was also committed to the Court of Sessions, Dholpur. Both the cases were consolidated by the learned trial Court. 3. The learned trial Court had commenced the trial by framing charges against the accused persons namely; Bheesham, Pappu @ Hemant, Kalua @ Hari Om and Vajanti for the offences under Sections 302 and 201 I.P.C. and as against the remaining accused persons, for offence under Section 201 I.P.C. The accused persons had denied the charges and claimed for trial. The prosecution had produced 16 witnesses in support of its case and got the documents exhibited which were prepared during the course of investigation. Subsequently, the statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure, wherein they had denied the prosecution evidence and stated that they have been falsely implicated in the case on account of enmity. 4. On conclusion of the trial, the learned Additional Sessions Judge, had convicted the accused appellants Bheesham, Pappu @ Hemant, Kalua @ Hari Om for the offences tinder Sections 302 and 201 I.P.C. and Smt. Vajanti for offence under Section 302 I.P.C. The remaining accused persons namely; Lakhan Singh, Girraj, Narendra, Raju, Lekh Raj, Rajesh, Netram, Ganga Singh, Sannu @ Surendra, Raj Bahadur, Dambar Singh and Rambaran were acquitted of the charges for the offence under Section 201 I.P.C. Hence, this present appeal has been preferred by the accused-appellants. 5. It has been contended by the learned counsel for the appellants that the prosecution has failed to prove its case beyond reasonable doubt and as such the impugned judgment deserves to be quashed and set aside and the accused appellants be acquitted of all the charges leveled against them. It has been submitted that after taking into consideration the over all facts and circumstances of the case and the material on record, it is more than clear that the prosecution has suppressed the genesis of the occurrence and the manner in which the incident had taken place. It has been submitted that after taking into consideration the over all facts and circumstances of the case and the material on record, it is more than clear that the prosecution has suppressed the genesis of the occurrence and the manner in which the incident had taken place. In this regard, it has also been submitted by the learned counsel for the appellants that the prosecution is guilty of withholding the first information received by it and, as such, the first version with regard to the incident received by the police in this case has been suppressed.It has been further submitted by the learned defence counsel that the prosecution had initially come with the case that the eye-witnesses had seen the occurrence but strangely enough a turn has been given to endeavour that the instant case is one of circumstantial evidence. It has been contended by the learned counsel for the accused appellants that the case of the prosecution since beginning was that the death of deceased Guddi had been caused on account of 'Mar Peet' done by the accused appellants wherein the accused appellant Bheesham was seen giving beating to the deceased Guddi after sitting with his knee on her neck. The other accused appellants are said to have given beating, as a result of which the deceased Guddi had died. Later on, the prosecution has come with the version that deceased Guddi died because of strangulation by a rope, the recovery of which was done by the prosecution. The learned counsel for the appellants has further submitted that a broad look to the prosecution story, in the instant case goes to show that the deceased was given beating by the accused appellants at her house. Thereafter, during the course of investigation, the case of the prosecution was that the deceased had been done to death by strangulation and at the stage of trial, the prosecution has come with a case that it was on account of a land which was entered into in the name of the deceased, sometime back, that the accused wanted to have the same sold out or be got entered into in their names. It is said to be the motive behind the incident. It is said to be the motive behind the incident. Therefore, the learned counsel for the appellants has submitted that the prosecution has failed to prove its case beyond reasonable doubt and the benefit be given to the accused-appellants which entitles them to be acquitted of all the charges levelled against them. The learned counsel for the appellants, in support of his submissions, has placed reliance on the cases Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , Khuman Singh v. State of Rajasthan, 1994 RCC 382 , Narsinbhai Haribhai Prajapati Etc. v. Chhatrasinh and others, 1977 Cri.L.J. 1144 , State of Rajasthan v. Sheo Singh & Ors., 2003 Cr.L.R. (SC) 284 and N.H. Mohammed Afras v. State of Kerala, (2008) 15 SCC 315 . 6. On the other hand, the learned Public Prosecutor has supported the impugned judgment passed by the learned trial Court and submitted that the conviction and sentence has rightly been awarded to the accused appellants and the same deserves to be affirmed by this Court. The learned Public Prosecutor has also submitted that there are minor infirmities in the prosecution evidence and it does not deserve to be thrown out in its entirety. It has been submitted that the deceased Guddi had died un-natural death and it was the accused appellants who had given beating, witnessed by the prosecution witnesses, on account of dispute with regard to an agricultural land entered in her name. It was with the object of getting the said land that the occurrence had taken place. Therefore, the learned Public Prosecutor has submitted that the prosecution has succeeded in proving its case beyond reasonable doubt and the impugned judgment passed by the learned trial Court does not call for any interference by this Court, in the present appeal. 7. The facts emerging from the material on record, in the instant case, are that a telephonic information was received at the Police Station and the same was noted in the 'Rojnamcha'. Thereafter, the police came in action, went to the village, in respect of the incident relating to the death of deceased Guddi. The SHO had also gone to the place of cremation. At that place, Anil Garg (PW-10) gave a written report to the police with regard to the incident which he is said to have witnessed. Thereafter, the police came in action, went to the village, in respect of the incident relating to the death of deceased Guddi. The SHO had also gone to the place of cremation. At that place, Anil Garg (PW-10) gave a written report to the police with regard to the incident which he is said to have witnessed. Besides, the informant Anil Garg had got the signature of Rameshwar (PW-1) on the report as a witness. According to the report, the incident was seen by the informant himself from the top of his house where he heard hue and cry and saw the accused Bheeshma sitting with his knee on the neck of the deceased Guddi. The other accused persons, particularly Rambaran, is said to have given beating to the deceased. 8. On having the said report registered for the offence inter alia 302 I.P.C., the Investigating Agency was put in motion and it visited the place of incident, cremation ground, etc. and also recorded the statements of many persons of the village. It is also revealed from the evidence on record that the accused persons, named in the report, had been called to the Police Station and this fact has been stated by the father of the deceased Jug Raj Singh (PW-14). However, the police arrested the accused persons only on 30.10.2001. The investigation was then completed and challan came to be filed on 26.1.2002 only against six persons. It is noteworthy that the challan was not filed against accused Bheeshma as well as Rambaran and the investigation against them was kept pending under Section 173(8) of the code of Criminal Procedure. During the course of investigation, before filing the initial challan, the police had also made recoveries of articles such as 'Rope', bailan' etc. 9. The aforesaid facts reveal that the police had first received the information on telephone which was duly entered into 'Rojnamcha', as given by the Investigating Officer, Hari Charan Sharma (PW-15) and on basis of the same, the investigation had commenced. But neither the said information received by the police has been placed on record nor the 'Rojnamcha' had been produced in evidence before the learned trial Court, so much so, that the particulars about the entry in the 'Rojnamcha' has not been mentioned in the formal first information report (Ex.18) chalked out by the police, on receipt of the report from Anil Garg. It is to be noted that in the said report, the time in respect of 'Rojnamcha (Aam)' had been mentioned as 10.30 A.M. After receiving the report from Anil Garg (Ex.P-16) the subsequent investigation had been proceeded in accordance with the same. In other words, the information received by the police first in point of time, the contents of the same, the author of the said information etc. have not been brought on record by the prosecution for the reasons best known to it. Therefore, the inevitable conclusion is that the first information received by the police had been withheld. 10. Furthermore, the report submitted by Anil Garg wherein Rameshwar had been made as a witness and it bears his signature, has given a version with regard to the incident as well as the manner in which it had taken place. The informant Anil Garg has very categorically stated before the learned trial Court that it was on the dictation of Rameshwar that he had written the report whereas the contents and the version iven in the report clearly shows that it had been made by the informant Anil Garg from his own side. Moreover, the witness of the report namely; Rameshwar (PW-1), when produced before the trial Court, did not support the prosecution case and he had been declared hostile.. Apart from it, it is significant to note that the informant Anil Garg had very clearly stated before the trial Court that the report was submitted by him at the Police Station. 11. Therefore, the over all facts and circumstances of the case, which have come on record by prosecution evidence, clearly reveals that the police had started investigation or came into action on the telephonic information received and noted in 'Rojnamcha'. But according to the informant Anil Garg a written report was submitted by him at the Police Station, as per the version of Rameshwar (PW-1). However, Rameshwar did not support the informant Anil Garg. But according to the informant Anil Garg a written report was submitted by him at the Police Station, as per the version of Rameshwar (PW-1). However, Rameshwar did not support the informant Anil Garg. Furthermore, the 'Rojnamcha' wherein the telephonic message/ information was recorded by the police, had not been produced before the learned trial Court.It is also noteworthy that according to the informant Anil Garg, the deceased was being.beaten up by the named accused persons wherein the accused Bheeshma had put his knee on the neck of the deceased but later on the case of the prosecution was that the deceased was strangulated by a piece of rope and accused Bheeshma was having a 'Bailan' at the time of incident. Even the story, as given in the first information report (Annexure-16) submitted by the informant Anil Garg, finds a total change during the course of investigation and his statement recorded under Section 161 of the Code of Criminal Procedure had to be confronted during the course of trial. Consequently, the facts and circumstances of the case, in its totality, goes to show that true version relating to the occurrence had not been disclosed by the prosecution. In other words, the prosecution has suppressed the genesis of the incident and the manner in which it had taken place. 12. Coming to another aspect of the matter as to whether the prosecution has succeeded in proving its case in relation to the offences for which the accused have been convicted and sentenced by the learned trial Court. All the accused persons have been convicted for the offence tinder Section 302 I.P.C. Therefore, it has to be seen as to whether the prosecution has proved its case beyond reasonable doubt against the accused persons for having committed the offence of murder. This has to be seen from the evidence on record produced by the prosecution for satisfying the ingredients of the offence of murder and also the intention of the accused persons for committing the said offence. Broadly speaking the prosecution had, in support of its case, relied upon the evidence of the prosecution witnesses as well as certain recoveries made from the accused persons. Broadly speaking the prosecution had, in support of its case, relied upon the evidence of the prosecution witnesses as well as certain recoveries made from the accused persons. So far as the prosecution witnesses are concerned, it would suffice to say that all the witnesses including that of the first information report namely Rameshwar (PW-1), out of a total of 15 witnesses, have not supported the prosecution except Ramveer (PW-11), Jug Raj Singh (PW-14) and Hari Charan Sharma (PW-15) and they had to be declared hostile. The said three witnesses who have supported the prosecution case are none else but the father of the deceased, Jug Raj Singh (PW-14), uncle of the deceased Ramveer (PW-11) and Hari Charan Sharma (PW-15), the Investigating Officer of the case. Therefore, it is to be noted that the prosecution witnesses who were residents of the village and residing in the neighbourhood to the place of incident had not supported the prosecution case. The said witnesses would have been the best piece of evidence in respect of the cause of dispute between the parties and for giving the true version of the incident and the manner in which it had actually taken place. 13. So far as the informant Anil Garg (PW-10) is concerned, his version is shaky and doubtful for the reason that though he had himself given the written report but later on he came with the version that it was written on the dictation of Rameshwar. Meaning thereby that his presence at the time of incident or he being an eye-witness of the incident becomes doubtful. The other witness of the report namely; Rameshwar has not at all supported the prosecution case and that is why he had been declared hostile. Meaning thereby that his presence at the time of incident or he being an eye-witness of the incident becomes doubtful. The other witness of the report namely; Rameshwar has not at all supported the prosecution case and that is why he had been declared hostile. Apart from it, a bare perusal of the first information report, the statement of the informant during the course of investigation (Ex.D-1), which was largely confronted with during the course of trial and also the statement given by him before the trial Court, goes to show that at every stage there had been a drastic change in respect of the material facts and the version with regard to the incident.As regards the prosecution witness Jug Raj Singh, the father of the deceased, it may be noted that after taking into consideration the stand taken by him during the course of investigation (Ex.D-3) and the one taken at the time of trial, he does not appear to be reliable much less to say to inspires confidence. He is said to have received the information about the incident and thereafter when he went to the Police Station he had found the named accused persons there but they had not been arrested till then. Even then no steps were taken by Jug Raj Singh, the father of the deceased, for taking an appropriate action by the Investigating Agency. Similarly, a perusal of the statement of Ramveer, the uncle of the deceased, recorded before the trial Court goes to show that there had been a drastic improvement in his version from the one given to the police, at an earlier point of time. Consequently, Ramveer was extensively confronted, during the course of trial, from the statement (Ex.D-2) given by him during the course of investigation. It is to be noted that the statements given by the informant Anil Garg (PW-10), Ramveer (PW-11) and Jug Raj Singh (PW-14) during the course of investigation, have been well proved by the Investigating Officer Hari Charan Sharma (PW-15), during the course of trial. 14. It is significant to note that on one hand the case of the prosecution is that accused Bheeshma and Rambaran were named in the report and they had actively participated in the incident but on the other hand they were neither considered to be accused nor challan was filed against them by the police on 26.1.2002. 14. It is significant to note that on one hand the case of the prosecution is that accused Bheeshma and Rambaran were named in the report and they had actively participated in the incident but on the other hand they were neither considered to be accused nor challan was filed against them by the police on 26.1.2002. So far as Rambaran is concerned, ultimately, the police found that he had committed the offence only under Section 201 I.P.C. and accordingly challan was filed against him. However, the prosecution failed to prove its case even for the said offence and, as such, he has been acquitted by the trial Court, whereas the initial case of the prosecution against him was for the offence trader Section 302 I.P.C., by naming him in the first information report with a specific role of beating having been assigned to him. 15. There is no evidence on record to show that the accused persons have committed the offence of murder or that they had the intention for the same. Apart from the aforesaid facts and circumstances in respect of the prosecution witnesses, the only other evidence brought by the prosecution is that of recoveries of clip from Vajainti, rope from Pappu @ Hemant and Kalua @ Hari Om and a Bailan from Bheeshma. The said recoveries are said to have been made on the informations given by the accused persons under Section 27 of the Evidence Act. But the said recoveries have not been proved by the 'Motbir's'. Ganga Singh (PW-6) has not supported the prosecution case.As mentioned earlier, it was not the case of the prosecution that the articles like rope or bailan were used in commission of the crime. As the initial version, in the report lodged by the informant Anil Garg, reveals that it was a case of simple beating by the named accused persons and the accused Bheeshma had put his knee on the neck of the deceased. The change in the version of the prosecution by bringing in the recoveries of the articles to show that they have been used for commission of the crime, not only makes the case doubtful but the same has not even been proved by any legal evidence. The change in the version of the prosecution by bringing in the recoveries of the articles to show that they have been used for commission of the crime, not only makes the case doubtful but the same has not even been proved by any legal evidence. Therefore, on the basis of the recoveries made by the prosecution in respect of the articles which are said to have been used in commission of crime, the case of the prosecution cannot be said to have been proved.The evidence of recoveries is in sufficient for sustaining the charge of murder against the appellants. This view of this Courts is supported by the principle laid down by the Hon'ble Supreme Court in the case of Narsibhai Haribhai Prajapati etc. v. Chhatrasinh and others, 1977 Cri.L.J. 1144 , wherein it has been laid down as Mulder : "We are prepared to assume in favour of the prosecution that the evidence in regard to the incident of the 23rd near the pond and the evidence in regard to the incident which took place near the Ota of the Pir shows that the respondents had some motive for committing the crime. We may also accept that blood-stained shirt and dhoti were seized from the person of respondent 1 and dharias were seized from the houses of respondents 1 and 3. But these circumstances are in our opinion wholly insufficient for sustaining the charge of murder of which the respondents are accused." 16. It is to be noted that the case of the prosecution is doubtful also for the reason that in the 'Naksh Mauka' prepared during the course of investigation, neither the house on top of which Anil Garg was standing nor the location of the eye-witness namely; Anil Garg and Rameshwar from where they had seen the incident, have been marked. This further makes the case doubtful in respect of the fact as to whether the witnesses had seen the incident or not. This aspect gains significance for the reason that the very basis of the prosecution version is the one given in the report filed by Anil Garg. This further makes the case doubtful in respect of the fact as to whether the witnesses had seen the incident or not. This aspect gains significance for the reason that the very basis of the prosecution version is the one given in the report filed by Anil Garg. In this respect reliance can be placed on the case of Savia v. State of Rajasthan, 1985 Cr.L.R. (Raj.) 18 , wherein it has been observed that in the site plan and site inspection memo, it has not been mentioned as to where these witnesses were standing when the incident took place and the witnesses have seen the occurrence. It is a serious infirmity and it persuades us to hold that the witness was not present near about the place of occurrence.Similarly, in the case of Hukumat Rai v. State of Rajasthan, 1987 Cr.L.R. (Raj.) 78 wherein it has been observed as under : "It has not been shown in the site plan Ex.P-2 as to where the prosecution witnesses who had witnessed the occurrence were standing. This fact t i should have been mentioned in this site plan by the Investigating Officer. Not mentioning the place of standing of the standing of the witnesses creates doubt in the presence of the prosecution witnesses and creates doubt in the story." 17. Needless to say, however grave suspicion may be against the accused persons but that cannot take place of proof for convicting and sentencing them for the offence alleged to have been committed. The prosecution has to come out with a clear case and it has to stand on its own legs to prove the same in accordance with law. The prosecution has come with a motive behind the incident alleging that the accused persons were annoyed with the deceased and wanted to take back the agricultural land which had been entered in her name. But it is to be noted that from the entire material on record, there is no evidence, much less to say a convincing one, to show that there had been any difference/ dispute between the parties over agricultural land, for which the neighbours would have been the best piece of evidence and that it resulted in the incident on the fateful day when the accused committed the murder of deceased Guddi. Apart from an entry in the revenue record in respect of an agricultural land in favour of the deceased, there is no evidence brought forth by the prosecution to show that the same was the bone of contention between the parties. Even the witness like Ramveer (PW-11), the uncle of the deceased and Jug Raj Singh (PW-14), the father of the deceased have not been able to establish the case that the accused wanted to have the land from the deceased Guddi or that the dispute was aggravated only on account of the fact that an entry of the agricultural land was made by the Patwari in the revenue record in the name of the deceased, or that it became a proximate cause resulting into the incident. As noted above, the prosecution witnesses who were residing in the neighbourhood have not deposed to the effect that the agricultural land was the cause of the dispute between the parties and that it had given rise to the occurrence. As a matter of fact, the said prosecution witnesses had not supported the prosecution case and therefore, they have been declared hostile. 18. Therefore, taking into consideration the aforesaid facts and circumstances of the case, the evidence on record and the case of the prosecution as given out before the learned trial Court, it is amply clear that there is no evidence to connect and prove beyond reasonable doubt that the accused- appellants had committed the offence under Section 302 I.P.C., simplicitor. The version given by the prosecution itself, is not only shaky but is full of doubt as the same has been of different nature at different point of time since the beginning and upto the trial of the case. In fact, a look to the entire prosecution case raises doubt with regard to the manner in which the incident had taken place. The prosecution has miserably failed to prove its case by legal evidence on record, against the accused persons that all of them have committed offence of murder. 19. In the result, the case against the accused appellants has not been proved beyond reasonable doubt and, as such, the impugned judgment of conviction and sentence passed against them is not sustainable in law. 19. In the result, the case against the accused appellants has not been proved beyond reasonable doubt and, as such, the impugned judgment of conviction and sentence passed against them is not sustainable in law. It is a well settled principle of law that if the case of the prosecution is doubtful then the benefit of the same has to be given to the accused persons. 20. Consequently, the instant appeal deserves to be allowed. The impugned judgment dated 26.6.2003 passed by the learned Additional Sessions Judge (Fast Track) No. 1, Dholpur is quashed and set aside. The accused appellants are acquitted of all the charges levelled against them.Accused appellant Smt. Vejanti W/o Mewaram is on bail. Therefore, her bail bonds are cancelled and she is not required to surrender. So far as the remaining appellants namely; Bheesham Singh S/o Mewa Ram, Pappu @ Hemant S/o Mewa Ram and Kalua @ Hariom S/o Mewa Ram are concerned, they are in judicial custody. Therefore, it is directed that they be set at liberty if their custody is not required in any other case. JUNE519 Appeal allowed. *******