JUDGMENT 1. - The matter was listed yesterday on the bail applications submitted on behalf of two accused namely; Pradeep & Dinesh @ Jagdish. As per report received from the Superintendent, Central Jail, Kota dated 20.05.2008, the appellant no.1, Raghunath Prasad died on 21.10.2007 while receiving the treatment at M.B.S. Hospital, Kota. So far as appeal of appellant No.1, Raghunath Prasad is concerned, the same stands abated. 2. On the request of learned Counsel for the parties as the accused-appellants have remained in custody and served the sentence nearly eight years, the appeal was listed today for hearing along with the bail applications. 3. We have heard learned Counsel for appellant no.2, Pradeep represented by Shri Surendra Sharma and appellant no.3, Dinesh @ Jagdish represented by Shri Anshuman Saxena as well as learned Public Prosecutor and perused the record. 4. Facts in brief are that a report (Ex.P8) was given out by PW-6 Salimuddin S/o Faimuddin PW-4 to the effect that his elder brother had been stabbed by some unknown person and has been sent to hospital wherein the emergency ward in MOT the dead body is lying with multiple injuries. On this report (Ex.P8) lodged on 03.01.1992 at 6.45 PM by PW-6, the Police started investigation and formal FIR Ex.P9 came to be registered on the basis of same after registering a case under Section 302 IPC. 5. During the course of investigation, the Police recorded the statement of various witnesses and also collected the evidence including the alleged weapon of offence based upon the information supplied by the accused persons. On completion of investigation, the Police filed a challan against as many as 11 accused persons out of whom one Arjun Singh S/o Bapu singh was declared absconder and he is yet to be tried. 6. After committal of the case to learned Additional District & Sessions Judge [Fast Track] No.2, Jhalawar, the learned ADJ, Fast Track No.2, Jhalawar vide his judgment dated 02.04.2003 convicted the accused-appellant No.1 Raghunath Prasad S/o Mathuralal, appellant No.2, Pradeep S/o Raghunath Prasad & appellant No.3, Dinesh @ Jagdish S/o Raghunath Prasad and acquitted the remaining seven accused persons from the charges. 7. Being aggrieved by the aforesaid judgment of conviction and sentence passed by learned Additional District & Sessions Judge [Fast Track] No.2, Jhalawar dated 02.04.2003, the accused-appellants preferred this appeal which is pending before this Court. 7. Being aggrieved by the aforesaid judgment of conviction and sentence passed by learned Additional District & Sessions Judge [Fast Track] No.2, Jhalawar dated 02.04.2003, the accused-appellants preferred this appeal which is pending before this Court. The accused-appellants were in custody serving their sentence and moved bail applications on 02.02.2011 for suspension of sentence. As stated above, since the appellants have undergone sufficient sentence, this Court directed that the appeal itself be heard on merits. 8. The submission of learned Counsel for the appellant is that it is a case of no evidence inasmuch as the conviction is based upon the sole testimony of one one of the alleged eye witnesses PW-19 Sharafat Ali. The appellant assailed the testimony of PW-19 Sharafat Ali on the ground that he was examined after 3= months of the incident for the first time by the Police and statements under Section 161 Cr.P.C. were recorded on 19.04.1992, whereas the incident occurred on 03.01.1992. 9. It was next urged that so far as statement of PW-4 Faimuddin is concerned, there is material contradiction between the statements of PW-19 Sharafat Ali, the alleged eye witness and that of father of the deceased PW-4 Faimuddin to whom the eye witness PW-19 is alleged to have given the names of the appellants as being the assailants whom he had seen inflicting injuries upon the deceased. 10. It was next urged by the learned Counsel for the appellant that there was also contradiction between the testimony of PW-6 Salimuddin the informant who lodged the FIR Ex.P8 and his father PW-4 Faimuddin in this behalf. It was also urged that so far as FIR Ex.P8 is concerned, as per the testimony of PW-6 Salimuddin, the Police had already reached the spot and taken away the deceased and the motorcycle of the deceased and, therefore, the information with regard to incident had reached the Police and therefore, Ex.P8 cannot be said to be first information report and thus the actual FIR on which the Police reached the spot and took away the deceased and his motorcycle from Prem Mandir Cinema, the place of incident has been withheld and Ex.P8 cannot be treated as the FIR. 11. 11. Learned Counsel for the appellant also urged that so far as the alleged recovery is concerned, there is no recovery as against the accused-appellant, Dinesh @ Jagdish of any weapon of offence and only alleged recovery by way of Ex.P16 is against the accused-appellant, Pradeep. So far as this recovery is concerned, it was alleged that the two witnesses namely; Devilal S/o Udailal and Rakesh Sharma S/o Devkinandan, who were witnesses to the same, have not been examined by the prosecution to prove the alleged recovery. As such, the recovery of alleged weapon is doubtful and not proved as there is no independent evidence to that effect. Moreover, the alleged weapon of offence has not been connected with the commission of crime as the same was not blood stained etc. 12. Learned Counsel for the appellant also contended that so far as the present case is concerned, apart from the above fact, the presence of the alleged eye witness PW-19 Sharafat Ali on the spot is wholly doubtful and also there is no motive for the offence as proved on the record. 13. Learned Public Prosecutor has supported the judgment passed by learned trial court and has contended that so far as delay in examining Sharafat Ali is concerned, the change of the investigation has resulted in causing delay. He further submits that the eye witness PW-19 has clearly deposed that he went to the spot where he had gone to meet one Prem Sindhi for realising certain amount which had been advanced by him to Prem Sindhi. He further submits that PW-19 has seen the incident and has recognised the accused as assailants and named three accused-appellants. It was also submitted that Sharafat Ali had gone to the house of PW-4 and gave the details of the incident and informed the names of the accused to him as the assailants. He submits that minor discrepancy in the statement of PW-4 who has not given the names of accused persons to the Police while deposing under Section 161 Cr.P.C. is of no consequence, as he has stated that he was informed by the person that his son had been murdered due to which he became perturbed and could not gave the said information. Learned Public Prosecutor, therefore, submits that there is corroboration of the testimony of PW-19 Sharafat Ali by PW-4 Faimuddin, father of the deceased by his statement in Court and there is a reasonable explanation given by PW-4 as to why the names were not disclosed by him in his statement under Section 161 Cr.P.C. He submits that the appeal be dismissed and judgment of the conviction and sentence of the accused-appellants call for no interference. 14. We have considered the rival submissions of learned Counsel for the parties. 15. It is not disputed that the prosecution case is solely based upon the testimony of eye witness PW-19 Sharafat Ali and a feeble attempt has been made to bring the element of motive as a circumstance and on the circumstance of recovery of the alleged weapon of offence from one of the accused namely; Pradeep. 16. So far as the evidence of the eye witness is concerned, it is not disputed that while the incident in which the deceased was attacked by assailants took place on 03.01.1992, the incident as per the prosecution, occurred outside the Prem Mandir Cinema at about 6'0 clock in the evening. In cross-examination PW-19 has stated as follows: " 'kke dks N% cts lk<+s+ N% cts tc flusek NwVrk gS rks yksxksa dh HkhM+ T;knk jgrh gS lgh gSA >kykokM+ 'kgj esa ,d gh flusek gS] lgh gSA ?kVuk ds ckn rqjUr gh eSaus elhg ds firk dks lwpuk ns nh Fkh ;g lgh gSA " ------- ?kVuk ns[kus ds ckn igys eSa esjs ?kj x;kA eSaus ?kj ij tkdj ;g ckr fdlh ?kj okyksa dks ugha crk;hA ;gka ls esa elhg ds ?kj dh vksj jokuk gqvkA -----esjs edku ds chp esa vkSj elhg ds edku ds chp cM+k cktkj] diM+k cktkj o ljkZQk cktkj gS lgh gSA bl ekdsZV esa 'kke ds le; gtkjksa O;fDr;ksa dh vken jgrh gSA ;g lgh gS fd izse efUnj flusek ls ?kj vkrs le; jkLrs esa dksrokyh Hkh vkrh gSA lgh gSA " 17. On the basis of above, it was submitted by the learned Counsel for the appellant that the whole conduct of this witness is unnatural of his not having divulged information either to any member of his family or to any person to whom he could have met between the place of incident and his house and while travelling from his house to the house of the deceased as it is a crowded bazar. 18. Learned Counsel further submitted that since it is an admitted position that between the place of incident i.e Cinema Hall and house of the deceased, the Kotwali [Police Station] also falls on the way i.e. enroute. The conduct of the witness of not going to Police Station to inform about the incident which he has witnessed and role of the accused-appellants for the same also is unnatural, particularly, when the deceased and his family was known to him. Nor did he raise any hue or cry at the Cinema Hall on seeing the accused assaulting the deceased more particularly when he admits that the Show had got over (3 Pm to 6 PM) and there was a crowd outside the cinema. 19. We also find from the testimony of PW-19 Sharafat Ali, the alleged eye witness that there is contradictions between his testimony and that of PW-4 Faimuddin, the father of the deceased. PW-19 Sharafat Ali has stated as follows: " elhg ds okfyn ?kj ij feys Fks] mudk uke Qbemnqnhu FksA 'kke dk le; Fkk bcknr dj jgs FksA T;ksafg eSaus mudks lwpuk nh] og jokuk gks x;s FksA eSaus elhg ds firk dks gh dgk Fkk] vkSj fdlh dks ugha dgkA " 20. As against the aforesaid statement PW-19, PW-4 Faimuddin, the father of the deceased has stated that the deceased came to the house and told his father that he is going to recover the amount of Rs. 11,000/- which the accused-appellants Pradeep & Dinesh @ Jagdish have promised to pay him. Then this witness also left the home to get some medicines from the market and did not return home instead he got news of the incident in the market. 11,000/- which the accused-appellants Pradeep & Dinesh @ Jagdish have promised to pay him. Then this witness also left the home to get some medicines from the market and did not return home instead he got news of the incident in the market. The relevant statement of PW-4 Faimuddin, the father of the deceased reads as follows: " eq>s ,slk [;ky gS fd igys elhg ?kj ls jokuk gqvk Fkk vkSj eSa ckn esa jokuk gqvk FkkA eSa Hkkjr esfMdy LVksj ij x;k nok yh vkSj ogka ls okfil jokuk gqvk] vkSj dkWyst ds lkeus gksdj ?kj tk jgk Fkk rks ogka xqytkj eafty ds lkeus tgka t;jkt ikdZ gS ogka bdcky vgen th odhy dk eqa'kh eq>s feyk ftlus crk;k fd elhg dks flusek ds lkeus fdlh us ekj fn;k gSA " " vki rqjUr vLirky igqapks mls vLirky ys x;s gSaA fQj /kh:flag th eq>s fey x;s vkSj og eksVjlkbZfdy ij cSBkdj vLirky ys x;sA lftZdy okMZ ds Vsfcy ij esjk yM+dk ejk gqvk iM+k FkkA----- " 21. The above narration clearly states that PW-4 was returning from the Medical Store and on the way he met Iqbal Ahmed near Jai Raj Park and he informed him that Masih (deceased) has been murdered near the cinema. After receiving this information, one Dhiru Singh took him on his motorcycle to the hospital. Till this point of time, any such conversation or information regarding death of Masih at the hands of the accused-appellants having been given by PW-19 to PW-4 has not been disclosed by this witness, PW-4 the father of the deceased. Thus the question of PW-19 having gone to the home of PW-4 giving the information about Masih's murder and naming the accused is not corroborated as PW-4 was not at home and got this information of his son's murder in the market place from Iqbal. 22. PW-4 further narrated before the Court that his statement under Section 161 Cr.P.C. was recorded by the Police as late as on 30.01.1992 i.e. after 27 days of the incident, whereas the incident had occurred on 03.01.1992. 22. PW-4 further narrated before the Court that his statement under Section 161 Cr.P.C. was recorded by the Police as late as on 30.01.1992 i.e. after 27 days of the incident, whereas the incident had occurred on 03.01.1992. It has come in the statement of the I.O. that the statement of PW-19 Sharafat Ali the eye witness was recorded for the first time on 19.04.1992 i.e. after merely 3= months of the alleged incident and this eye witness disclosed the names of all the accused-appellants on 19.04.1992 for the first time in his statement on 19.04.1992. This too appears to be highly improbable. Firstly, if PW-4 Faimuddin had been informed by PW-19 Sharafat Ali about the names of alleged assailants including the appellants on the date of incident i.e. 03.01.1992 it is not understandable as to why PW-4 Faimuddin could not disclose the name of the accused in his statement under Section 161 Cr.P.C. which was recorded as late as on 30.01.1992 i.e. 27 days of the incident as by that time as per the prosecution case PW-19 Sharafat Ali had already disclosed these names to him and in 27 days PW-4 would have overcome any shock that he might have been on 03.01.1992 after having of his son's murder. Coupled with the above the fact that eye witness PW-19 was interrogated by the Police only on 19.04.1992 i.e. after 3= months of the incident is also very strange and does not inspire confidence. When PW-19 Sharafat Ali was known to the deceased and he had seen the alleged incident, it is strange that this sole eye witness would remain silent and not disclosed the names of the assailants to the Police immediately when no arrests were made as the Police did not know the identity of the accused and he waited 3= months to disclose these names to the Police. There is, therefore, substance in the submission of the learned Counsel for the appellant that this witness PW-19 in view of the fact that he remained silent for nearly 3= months being the only eye witness and was available in Jhalawar not having left the city during this period as admitted by him in his cross-examination and also very importantly when the deceased was known to him. It is strange that why his statement was not recorded by the Police earlier. It is strange that why his statement was not recorded by the Police earlier. The prosecution case, therefore, based upon the sole testimony of this witness cannot be accepted without corroboration. Also the fact that this eye witness had actually gone to Prem Mandir Cinema on the fateful day which is at a considerable distance from his residence is also not proved which would in the totality of the facts and circumstances cast a doubt on the prosecution story. 23. As has been noticed above, there is contradiction between the statement of PW-4 the father of the deceased to whom the names of the accused-appellants were disclosed by PW-19 the eye witness on the date of the incident itself and the statement of PW-19. As per the statement of PW-4, he came to know about the incident while he was returning from Medical Store and this information was conveyed to him by Iqbal Ahmed in the market place near Jai Raj Park. However, the Police has failed to examine the witness Iqbal Ahmed, who is said to have given this information to PW-4, the father of the deceased as to how he came to know of the incident of whether or not he had given this information to PW-4 or Dhiru Singh the person who took PW-4 on the motorcycle to the hospital. The absence of any such corroboration and the fact that there is contradictions between the testimony of PW-4 and PW-19, since PW-19 has stated that he was the person who disclosed this information regarding murder of Masih to PW-4. While he was performing the evening prayers at his residence soon after the incident took place at about 6 or 6.30 in the evening and on getting this information as per PW-19, PW-4 left his house for the hospital. Since PW-4 has stated that he was already in the market when he got the aforesaid information, the evidence of PW-19 cannot be relied upon. In the face of the contradictions in the statements of PW-4 and PW-19 the testimony of PW-19 which was recorded more than 3= months after being interrogated by the Police creates a doubt as to whether or not PW-19 was actually the eye witness to the incident who remained silent for 3= months despite having seen the accused appellants actually assaulting the deceased. The appellants have, therefore, in our opinion, succeeded in creating a doubt regarding testimony of PW-19 which was relied upon by the learned trial Court. 24. In view of the fact that there was a delay of over 3 months in the interrogation of the sole eye witness who did not report the incident to the Police himself and also the fact that there is contradictions in the statements of PW-19 and PW-4 to whom the PW-19 is said to have given the information and the names of the accused-appellants as the assailants, the testimony of PW-19 cannot be said to be of sterling worth as he is the only witness of the prosecution so as to base the conviction of the accused on the same. 25. So far as the circumstance of recovery of the alleged weapon of offence is concerned, suffice it to say that after the arrest of Dinesh @ Jagdish there is no recovery of any weapon of offence from the said accused-appellant. The alleged recovery from the accused-appellant Pradeep is based upon the information given by Pradeep vide Ex.15 and based upon the aforesaid information, recovery is said to have been made by the SHO vide Ex.16. There are two witnesses who are said to be the witnesses to the recovery namely; Devilal S/o Udailal and Rakesh Sharma S/o Devkinandan; both these witnesses have not been examined by the Prosecution to prove the aforesaid recovery at the instance of the accused-appellant. There is, therefore, the element of doubt created by the accused and the recovery is not proved beyond doubt. So far as the reliance to be placed upon the said circumstance of recovery and the motive is concerned, the prosecution has failed to lead any reliable evidence. 26. In the facts and circumstances, therefore, we are of the opinion that the prosecution has failed to prove the case against the accused-appellants beyond reasonable doubt and the judgment passed by the learned trial Court convicting the accused-appellants and sentencing them for the offence under Section 302/149 IPC and under Section 148 IPC cannot be sustained. 27. Accordingly, we would allow this appeal and set aside the judgment of conviction dated 02.04.2003 passed by learned Additional District & Sessions Judge [Fast Track] No.2, Jhalawar in Sessions Case No.3/2001. 27. Accordingly, we would allow this appeal and set aside the judgment of conviction dated 02.04.2003 passed by learned Additional District & Sessions Judge [Fast Track] No.2, Jhalawar in Sessions Case No.3/2001. The accused-appellants are in jail and shall be released forthwith after submitting the necessary surety and bail bonds as required under Section 437-A Cr.P.C. which shall remain in force for a period of six months.Appeal dismissed. *******