JUDGMENT 1. - Being convicted for an offence punishable under Section 302 Indian Penal Code and sentenced to undergo life term imprisonment with a fine of Rs. 1000/- and further to undergo one month's additional imprisonment in the event of default in payment of fine, under the judgment dated 7.6.2007, passed by learned Additional Sessions Judge (Fast Track) No.2, Bikaner, this appeal is preferred. 2. The facts unfolded during the trial are that on 2.11.2006 Shri Mahesh Kumar Soni (PW-7) submitted a written report at police station Dungargarh with assertion that in the night of 1.11.2006 at about 11:00 PM while coming to home after attending a marriage, he saw his brother-in-law Shri Budh Prakash sitting with Kana Ram (accused) at Chainrup-ki-chowki. On telling, Budh Prakash to go to his home, Kana Ram assured to drop him later on. In morning at about 06:00 AM on hearing that Budh Prakash has been murdered and his dead body is lying in the compound of Balaram, he rushed to Uma Shankar, who was appearing quite frightened. Uma Shankar stated that in the night at about 2-3 AM some quarrel took place near the compound of Balaram, wherein Kana Ram and 2-3 other persons were beating Budh Prakash with lathis and knives. In the report Mahesh Kumar further stated that Kana Ram met his father early morning and tendered apology. Kana Ram also had combat with Budh Prakash few months earlier, thus, he was keeping vengeance with Budh Prakash though they arrived at some compromise. 3. On basis of the information received, a case was registered and after completing regular investigation a police report as per provisions of Section 173 Criminal Procedure Code was submitted to the court competent. The trial court framed a charge for commission of an offence punishable under Section 302 Indian Penal Code. The same was denied by the accused and a demand was made for regular trial. 4. The prosecution supported its case with the aid of 11 witnesses and 26 documents. While availing opportunity to explain adverse circumstances in prosecution evidence the accused pleaded his innocence and stated that he was falsely implicated in the case with concocted evidence. In defence he got five documents exhibited. 5. Out of 11 witnesses produced by the prosecution PW-9 Uma Shankar was cited as eye witness of the incident. While availing opportunity to explain adverse circumstances in prosecution evidence the accused pleaded his innocence and stated that he was falsely implicated in the case with concocted evidence. In defence he got five documents exhibited. 5. Out of 11 witnesses produced by the prosecution PW-9 Uma Shankar was cited as eye witness of the incident. PW-3 Rukmanand (father-in-law of deceased) tendered evidence in the nature of extra judicial confession, however, the evidence adduced by him was not found trustworthy by the trial court. Mahesh Kumar (PW-7) is the person who by availing facts from Uma Shankar (PW-9) submitted written report Ex.P/7. This witness also stated that he saw the deceased in the company of accused in the night of 1.11.2006, thus, the prosecution termed that as an evidence akin to last seen. 6. The accused was arrested on 3.11.2006 as per memo of arrest Ex.P/23. On 5.11.2006 he disclosed certain information and by acting upon that a knife and a 'danda' were recovered on 5.11.2006 itself as per Ex.P/19. Ex.P/20 is the report pertaining to the place, wherefrom recovery as per Ex.P/19 was made. On 7.11.2006 some more information was given by the accused and at his instance a blood stained paijama was recovered as per Ex.P/21. Ex.P/22 is the report of site from where recovery was made under Ex.P/21. PW-9 Uma Shankar and PW-10 Ghanshyam are the witnesses of the recoveries made at the instance of accused Kana Ram. Ex.P/26 is the report of serological examination made by Forensic Science Laboratory. As per this report blood smeared soil, robs seized from the body of deceased, weapons recovered at the instance of accused and paijama recovered were having blood stains of group "AB". The investigating officer Suresh Chandra (PW-11) narrated all the steps taken during the course of investigation. The documents Ex.D/2, Ex.D/3 and Ex.D/5 are the statements of Rukmanand (PW- 3), Mahesh Kumar (PW-7) and Uma Shankar (PW-9) taken by the investigating agency as per Section 161 Criminal Procedure Code. 7. The cause of death as per medical opinion was multiple injuries on head. As per the postmortem report Ex.P/1 the person of deceased Budh Prakash was having following antemortem injuries:- 1.T-shaped lacerated wound in right occipito parietal region both are 10 cm with blood clots bone deep with depress present. 2.Incised wound 3 cm x .5 cm bone deep in right occipital region. As per the postmortem report Ex.P/1 the person of deceased Budh Prakash was having following antemortem injuries:- 1.T-shaped lacerated wound in right occipito parietal region both are 10 cm with blood clots bone deep with depress present. 2.Incised wound 3 cm x .5 cm bone deep in right occipital region. 3.Incised wound 2 cm x .5 cm bone deep right parietal. 4.Incised wound 3 cm x .5 cm x muscle deep right pinna of the ear. 5.Incised wound 3 cm x .5 cm bone deep near right ear ponteny. 6.Incised wound 3 cm x .5 cm x muscle deep infront of right ear. 7.Lacerated wound 5 cm x .5 cm x bone deep right side frontal bone near midline. 8.Lacerated wound 3 cm x .5 cm x bone deep right frontal region lateral to injury No.7. 9.Lacerated wound 2 cm x .2 cm x muscle deep right eye brow. 8. Considering the evidence available, the trial court held the accused guilty for the charge settled. 9. In appeal, several arguments are advanced to impeach the findings given by the trial court. It is urged that the court failed to appreciate that the entire evidence adduced by the trial court is highly doubtful and not at all worthy to establish guilty of the appellant. 10. Learned Public Prosecutor, in general, defended the findings arrived by the trial court. 11. Heard counsel for the appellant and the Public Prosecutor. 12. In view of the medical evidence available on record, there is no doubt about homicidal death of Shri Budh Prakash. However, it is pertinent to note that his person was having lacerated as well as incised injuries and all those injuries were on head or at nearby region. 13. Shri Mahesh Kumar (PW-7) and Shri Uma Shankar (PW-9) are real brothers. The deceased was husband of their real sister. Shri Mahesh Kumar (PW-7) submitted the first information report and as per this witness he saw deceased in the night of 1.11.2006 at 11:00 PM with accused Kana Ram at Chainrup-ki-chowki. In morning of 2.11.2006 at about 06:00 AM one boy Pillu came to him and conveyed that Budh Prakash was lying at the compound of Balaram. On getting this information he went to the residence of his younger brother Uma Shankar, who then was sleeping. Uma Shankar was highly frightened. In morning of 2.11.2006 at about 06:00 AM one boy Pillu came to him and conveyed that Budh Prakash was lying at the compound of Balaram. On getting this information he went to the residence of his younger brother Uma Shankar, who then was sleeping. Uma Shankar was highly frightened. Uma Shankar stated to this witness that in previous night at about 01/01:30 AM his sister came with her son Nandlal and told that Budh Prakash has not came to home. He then went towards the compound of Balaram in search of Budh Prakash, where he saw Kana Ram beating Budh Prakash with knife and lathis. On seeing this, Uma Shankar lost his senses and was feeling numbness and Kana Ram threatened him also for dire consequences. According to PW-7 Mahesh Kumar, his father Rukmanand also then reached at the house of Uma Shankar and informed that Kana Ram met him in early morning at 5:30 AM and tendered apology, however, no reason for that was in his knowledge. This witness then with Uma Shankar and his father Rukmanand went to the spot, where body of Budh Prakash was lying. An information of the incident then was given to the police telephonically. In cross examination this witness revealed that the age of his nephew Nandlal is 17 years and the distance between his house and the house of Uma Shankar is about 150 feet and the distance of his house with the house of Budh Prakash is about 100 feet. This witness also stated that one Pawan Bhargava also accompanied him to the house of Uma Shankar and this companion also heard the fact whatever stated by Uma Shankar. This witness further stated that as per Uma Shankar alongwith Kana Ram 2-3 more persons were beating Budh Prakash but a wrong statement is given by him today that only Kana Ram was beating Budh Prakash. This witness also stated that "it is right to say that when Uma Shankar told him about his witnessing the incident to beating of Budh Prakash and 2-3 other persons with knife and lathis, Pawan Bhargava was standing near to him and hearing the narration. 14. The most significant witness in this case is PW-9 Uma Shankar who is cited as eye witness of the incident. 14. The most significant witness in this case is PW-9 Uma Shankar who is cited as eye witness of the incident. As per Ex.P/7 the entire incident was narrated to PW-7 Mahesh Kumar by this witness and narration so made is foundation of the first information report. This witness as per PW-7 Mahesh Kumar went with him at the spot, where dead body of Budh Prakash was lying and information was given to the police. The statements of this witness as per provisions of Section 161 Criminal Procedure Code were taken by the investigating agency on 5.11.2006 i.e. after a lapse of two days from the date of incident. 15. According to Uma Shankar (PW-9), in the night of 1.11.2006 at about 1/1:30 AM his sister Smt. Kamlesh and nephew Nandlal came to him and told that his brother-in-law has not returned to home. He sent them to their home, and went in search of his brotherin- law Budh Prakash. On reaching at Balaram Tailor's compound, he saw that accused Kana Ram was beating his brother-in-law Budh Prakash with knife and lathi. On seeing this he frightened, returned to home and slept. He became unconscious and awoke in morning when his brother PW-7 Mahesh came to his residence with some other person. He then narrated entire incident to his brother and conveyed that Kana Ram has murdered their brother-in-law. He then with Mahesh went to his father's home, who then was not available at home being gone for teaching. His father, on coming, disclosed that Kana Ram met him and tendered apology but he was not knowing any reason for tendering such apology. An information then was given to the police telephonically. On reaching of the police at the spot of occurrence the same was also given in writing. As per this witness he went with police party while effecting recoveries as per documents Ex.P/19 and Ex.P/21. 16. During cross examination this witness stated that the police took his statement at first instance in the morning of the day of incident and then again on 5.11.2006. On making such statement by this witness, the Public Prosecutor clarified before the trial court that no statement said to be taken on 2.11.2006 as per provisions of Section 161 Criminal Procedure Code is available in case diary. On making such statement by this witness, the Public Prosecutor clarified before the trial court that no statement said to be taken on 2.11.2006 as per provisions of Section 161 Criminal Procedure Code is available in case diary. It was also stated by this witness that his brother-in-law was a man of strong built with a height of about 5' 9" and when Kana Ram was assaulting him he was screaming loudly. This witness saw the entire incident from the distance of about 20 feet. According to PW-9 Uma Shankar, he erroneously stated about involvement of 2-3 other persons in the incident, but as a matter of fact it was only Kana Ram who was assaulting Budh Prakash. This witness accepted that neither he made any effort to save Budh Prakash by intervention nor he made any alarm to seek help, though the houses of Sheraram, Madanlal, Bhagirath etc. are very close to the compound of Balaram. This witness also stated that if an alarm loudly would have been made then that may had been audible in the nearby houses. This witness reiterated that on 2.11.2006 police came at the place of occurrence at about 07:15 AM and the information of the incident was given in writing by him and Mahesh (PW-7) to the "Thanedar". 17. Being a witness of recovery, this witness stated that he and Ghanshyam went to the house of Kana Ram on 5.11.2006 alongwith police party and after opening lock of the room by Kana Ram a 'danda' measuring 2-21/2 feet and a vegetable cutting knife with a blade measuring 3" were recovered. On 7.11.2006 also he and Ghanshyam accompanied the police party while making recovery of paijama from the residence of Kana Ram. This witness accepted that Ghanshyam is his maternal uncle and the maternal uncle-in-law of deceased Budh Prakash. 18. PW-10 Ghanshyam stated on oath that on 5.11.2006 he alongwith Uma Shankar went to the house of Kana Ram, wherefrom knife and 'danda' were recovered. On 7.11.2006 a paijama was recovered by the police at the instance of Kana Ram. 19. An another important witness is PW-11 Suresh Chandra, the Investigating Officer. As per this witness he reached at the place of occurrence at about 07:15 AM, where a written report was given by Mahesh (PW-7). At that time number of persons were present, but Uma Shankar (PW-9) was not there. 19. An another important witness is PW-11 Suresh Chandra, the Investigating Officer. As per this witness he reached at the place of occurrence at about 07:15 AM, where a written report was given by Mahesh (PW-7). At that time number of persons were present, but Uma Shankar (PW-9) was not there. Uma Shankar met him at first instance on 1.11.2006. This witness accepted that no effort was made by him to investigate the matter by getting the facts inquired from Uma Shankar before 5.11.2006. No such effort was made by this witness being busy in getting postmortem and other necessary investigation in the case. It is also stated by this witness that he did not choose to inquire the facts from eye witness as Mahesh (PW-7) and Rukmanand (PW-3) told him that Uma Shankar was at home being highly frightened. No effort was made during the investigation to inquire about 2-3 other persons said to be accompanying accused Kana Ram as referred in the first information report and in the statements given by Mahesh as per Section 161 Criminal Procedure Code. This witness also accepted that no independent witness was called for at the time of effecting recoveries at the instance of accused Kana Ram. 20. With the aid of the evidence noticed above, merits of the case are to be examined. As per prosecution a motive was available to the accused as he had some quarrel with deceased few months back, an eye witness has given reliable evidence about involvement of the accused in crime and that is sufficiently corroborated by the medical evidence, the recovery made at the instance of accused and the findings of the serological examination further fortifies charge levelled. 21. So far as availability of motive is concerned, suffice to state that whatever quarrel took place between the deceased and the accused, that was of very minor nature and it is also a position admitted that the accused and the deceased had a compromise for the incident taken place earlier. It is also pertinent to note that on the day of incidence the accused and the deceased were sitting at Chainrupki- Chowki and they were quite friendly. It is also pertinent to note that on the day of incidence the accused and the deceased were sitting at Chainrupki- Chowki and they were quite friendly. Be that as it may, even if it is assumed that the quarrel taken place few months back kept some knot in the mind of accused, then too no material is available on record to establish that the dispute was of such a serious nature that the accused who is otherwise not of a criminal attitude was left with no option but to kill Budh Prakash. 22. Now coming to the other evidence available on record, suffice to say that the same suffers from serious loopholes and provides ample reasons to have reasonable doubt in believing the prosecution case. On appreciation of the conduct of eye witness Uma Shankar (PW-9), we find that he did not come before the court with complete clarity. As per this witness his sister Smt. Kamlesh came with her 17 years old son and then he went out to have search of his brother-in-law, and just at the distance of about 250 feet from his house he saw Kana Ram beating his brother-in-law Budh Prakash with lathi and knife. No effort was made by this man to save the victim by intervention or even by raising alarm. Not only this, this witness did not choose to inform about the incidence to his brother, father and even the sister who came to him in search of her husband few minutes ago only. Surprisingly enough, this witness instead of going to his relatives and friends residing in the same vicinity, rushed to his home and slept without giving information of the incidence to anyone. He was brought out from the slumber by his brother in the morning, when he came to home. This witness conveyed his brother that Kana Ram and 2-3 other persons were involved in combat, but he changed his version later on. In normal course, a person on seeing his close relative in trouble tries to help him, but this witness what to talk of going forward to save his brother-in-law, did not choose even to raise an alarm. Not only this, instead of informing the unfortunate incident to his family members, this witness choose to go to his bed and remained in slumber till morning. Not only this, instead of informing the unfortunate incident to his family members, this witness choose to go to his bed and remained in slumber till morning. Such kind of conduct is quite strange and is contrary to normal human behaviour. It is important to note that as per Ex.P/7 this witness told to Mahesh (PW-7) that Kana Ram and 2-3 other persons were in combat with Budh Prakash, but subsequently he changed the version with assertion that only Kana Ram was beating deceased with knife and lathi. The person of deceased was having several lacerated and incised injuries on his head and nearby region. It is very difficult to digest that one person gave all these incised, as well as lacerated injuries to a man of reasonably good built. Another important fact of the matter is that as per this witness he went to the spot of occurrence with his brother and father in morning and his statement was taken by the police, but the Investigating Officer (PW-11) is having totally a different version. The Investigating Officer stated that PW-9 Uma Shankar was not at spot and his statements as per Section 161 Criminal Procedure Code were taken first time on 5.11.2006. The statements of eye witness if were taken by the police on 2.11.2006, then those should have been available on record and a necessary entry should have been there in the case diary. The case diary was not available with the Investigating Officer (PW-11), when he deposed before the court. As already stated earlier, the Investigating Officer did not make necessary inquiry from the eye witness on the count that he was busy with investigation of the case. We really failed to understand that what other important investigation was to be made in the present case, then to avail version of solitary eye witness? The Investigating Officer did not choose to have facts from the eye witness for good three days, though he was knowing about presence of that witness in the town and at home. It appears that the eye witness PW-9 Uma Shankar and the Investigating Officer while deposing before the court were trying to hide certain important and relevant facts. At this juncture, it is also relevant to notice that certain important contradictions exist in the statements of the eye witness and his brother Mahesh (PW-7). It appears that the eye witness PW-9 Uma Shankar and the Investigating Officer while deposing before the court were trying to hide certain important and relevant facts. At this juncture, it is also relevant to notice that certain important contradictions exist in the statements of the eye witness and his brother Mahesh (PW-7). As per PW-7 Mahesh, he went to the house of Uma Shankar in the morning where Rukmanand also came and informed that accused Kana Ram tendered apology to him, whereas as per PW-9 Uma Shankar he alongwith Mahesh went to the residence of their father Rukmanand, who was not at home and on coming subsequently he informed about tendering of apology by accused Kana Ram. Both these witnesses accept presence of Pawan Bhargava at the residence of Uma Shankar, however, he has not been produced in evidence by the prosecution. 23. Be that as it may, an another aspect of the matter is that as per PW-9 Uma Shankar, deceased Budh Prakash was crying and screaming loudly when Kana Ram was assaulting him and the place of occurrence is in an area having adequate population. No such cry was heard by any neighbour and no one came out even as a normal anxiety. This is also a fact that disturbs us in believing the statements of the eye witness. 24. The other important evidence against the appellant is recovery of blood stained clothes and weapons of offence. As already stated earlier, the accused was arrested on 3.11.2006 and he made disclosure twice i.e. on 5.11.2006 and 7.11.2006. On basis of the disclosure made on 5.11.2006 a 'danda' and knife were recovered from a room situated in the house of accused. From the same room blood stained paijama was recovered by investigating agency on 7.11.2006. We failed to understand that how the investigating agency failed to recover paijama on 5.11.2006 itself while effecting recovery of knife and 'danda' from the same place in the same room. Beside the above, an additional fact is that no effort was made by the Investigating Officer to have independent witnesses while effecting recoveries on 5.11.2006 as well as on 7.11.2006. No reason for that is given by him. PW-9 Uma Shankar and PW-10 Ghanshyam are close relatives of the victim's family and, therefore, better course available to the investigating agency was to have independent witnesses. 25. No reason for that is given by him. PW-9 Uma Shankar and PW-10 Ghanshyam are close relatives of the victim's family and, therefore, better course available to the investigating agency was to have independent witnesses. 25. Having considered the entire evidence in lucid, we are of the view that the prosecution case suffers from reasonable doubts to be believed. This benefit of doubt is required to be extended in favour of accused Kana Ram. 26. Accordingly, the appeal is allowed. The judgment impugned dated 7.6.2007 passed by Additional Sessions Judge (Fast Track) No.2, Bikaner, convicting the accused appellant for the offence punishable under Section 302 Indian Penal Code is set aside and the accused is acquitted from the charge levelled against him by the trial court. The accused be released from State custody forthwith, if not otherwise required in any other case for any other purpose.Appeal allowed. *******