JUDGMENT 1. - Instant jail appeal has been filed by the appellant Ratan Lal S/o Dalu through the Superintendent, Central Jail, Udaipur against the judgment and order of sentence dated 3.1.2006 passed by the Addl. Sessions Judge (Fast Track), Chittorgarh in Sessions Case No. 20/2005 (arising out of F.I.R. No. 267/2004, P.S. Chittorgarh) whereby the accused-appellant was convicted for offence under Section 302 I.P.C'. and sentenced to suffer life imprisonment and to pay fine of Rs. 5,000/- and in default of payment of fine, to further undergo three months' rigorous imprisonment. 2. As per facts of the case, upon written information given by the complainant Jagdish Chandra Pareek that he is resident of village Ganeshpura where he heard with regard to the fact that near Pandoli-ki-Chhapar a dead body of a person is lying backside up upon a motorcycle. Upon hearing the said information, he and one Laxman both went to the spot where motorcycle No. RJ-09-3M-4667 was standing on the road and dead body of one person lay and upon inspection, it was found that the said body was of Jagdish Suthar S/o Duli Chand, R/o Gandhinagar, but how he died it is not known. 3. Upon the said information the police registered the report and took up investigation. Upon inspection of the site and motorcycle, a spectacles along with one diary was found in the pocket of the shirt of the dead body which were seized by the police and panchnama of the dead body was prepared. Thereafter, the dead body of Jagdish Suthar was handed over to his wife Radha after preparation of the site plan. During investigation, it is found that the place where the body was found which is Narpat-ki-Kheri is within the jurisdiction of the Police Station Kotwali, Chittorgarh, therefore, the proceedings undertaken under Section 174 Cr.P.C. by the Police Station Chanderiya was forwarded to the Police Station Kotwali, Chittorgarh where F.I.R. No. 267/2004 for offence under Section 302 I.P.C. was registered and investigation was commenced. 4. In the investigation, for more than eight months nothing was recovered but on 13.12.2004 statements of PW-6 Madanpuri was recorded under Section 161, Cr.P.C. and thereafter statements of one Pokar Lal, PW-11 and Smt. Ratni, PW-22 were recovered under Section 161, Cr.P.C. and to confirm the testimony statements of Pokar Lal and Smt. Ratni were got recorded under Section 164 Cr.P.C. and F.S.L. report was received. The accused-appellant was arrested on 20.12.2004 who identified the place of the occurrence. The Investigating Officer after usual investigation filed challan against the accused-appellant in the Court of Chief Judl. Magistrate, Chittorgarh where the case was committed to the Court of Addl. Sessions Judge No. 1, Chittorgarh and as per orders of the District and Sessions Judge, Pratapgarh, the case was transferred to the Court of Addl. Sessions Judge (Fast Track), Chittorgarh for trial. The said Court commenced the trial after framing charge against the accused-appellant under Section 302 I.P.C. 5. At the trial, statements of 27 prosecution witnesses were recorded and after recording the prosecution evidence the trial Court recorded statement of the accused-appellant under Section 313 Cr.P.C. It is an important fact of the case that after recording statements of 25 prosecution witnesses, statement of the accused-appellant was recorded under Section 313 Cr.P.C. on 6.9.2005 and thereafter, an application was filed by the Addl. Public Prosecutor for summoning two witnesses Bhaluram, Constable No. 426 of Police Station Amod as PW-26 and Head Constable Rod Singh, Belt No. 855 of Police Station Kotwali as PW-27 and after recording statements of above prosecution witnesses, again statement of the accused-appellant was recorded under Section 313 Cr.P.C. 6. In the first statement recorded under Section 313 Cr.P.C., for question No. 26 the accused-appellant gave reply that," funksZ"k gwa >wBk Qalk;k gSA " but later on after recording evidence of PW-26 Bhaluram and PW-27 Rod Singh, the accused-appellant in his subsequent statement recorded under Section 313 Cr.P.C. gave reply to question No. 5 that, " eSaus o e`rd txnh'k lqFkkj us lkFk 'kjkc ih e`rd dh rfc;r T;knk [kjkc gks jgh Fkh blfy, bykt gsrq mls fpRrkSM+ 'kgj yk jgk Fkk] jkLrs esa ,slk yxk fd ;g ej pqdk gS rks eSa NksM+ dj vk x;k] eSaus mls ugha ekjk] og esjk nksLr FkkA " 7. The trial Court after recording statement granted an opportunity to the defence. However, the accused-appellant did not produce any evidence in his defence. Therefore, the learned trial Court heard the case finally and vide judgment dated 3.1.2006 held the appellant guilty for offence under Section 302 I.P.C. and passed sentence of life imprisonment against him along with fine of Rs. 5,000/- for committing offence under Section 302, I.P.C. 8. In this jail appeal, the accused-appellant is challenging the validity of the aforesaid judgment. 9. 5,000/- for committing offence under Section 302, I.P.C. 8. In this jail appeal, the accused-appellant is challenging the validity of the aforesaid judgment. 9. The co-ordinate Bench of this Court vide order dated 3.2.2006 appointed Shri R.S. Choudahry as amicus curiae to provide legal aid to the unrepresented appellant in this jail appeal and to assist the Court on his behalf. 10. Learned counsel for the appellant vehemently submits that the accused-appellant has been implicated falsely in this case because as per the prosecution evidence no offence under Section 302 I.P.C. is made out against the accused-appellant. While attacking upon the validity of the judgment of the trial Court it is submitted that the said judgment of the trial Court it is submitted that the said judgment is based upon testimony of three witnesses viz., PW-6 Madan Puri, PW-11 Pokar Lal and PW-22 Smt. Ratni, so also, the trial Court relied upon the subsequent statement of the accused-appellant recorded under Section 313 Cr.P.C., in which the accused-appellant said the truth of the incident; but the trial Court without assessing the evidentiary value of the entire evidence including the statements of Dr. Sanjay Pareek, PW-13 and Dr. Aneesh Jain, PW-14 wrongly discredited the plea taken by the accused-appellant for the incident. 11. Learned counsel for the appellant submits that as per statement of PW-6 Madan Puri he saw the accused-appellant going on motor-cycle and one person was lying upon the petrol tank of the motor-cycle and his hand was hanging, so also, the said witness also stated that accused Ratan Lal was driving the motor-cycle; meaning thereby, the trial Court relied upon the testimony of PW-6 Madan Puri, but, in fact, as per his statement made in cross-examination, he was not knowing the accused-appellant and for the first time, his statement was recorded by the police after 7-8 months of the incident in question. Therefore, upon the fact that the said witness did not come out with correct position in time, it is not safe to rely upon the testimony of such witness. Therefore, the conviction of the accused-appellant so based upon the testimony of PW-6 Mdan Puri deserves to be quashed. 12. Therefore, upon the fact that the said witness did not come out with correct position in time, it is not safe to rely upon the testimony of such witness. Therefore, the conviction of the accused-appellant so based upon the testimony of PW-6 Mdan Puri deserves to be quashed. 12. While inviting attention towards statement of PW-11 Pokar Lal, it is submitted that the said witness specifically stated in his statement that he, accused Ratan Lal and deceased Jagdish Suthar consumed liquor and went along with one Rathi as per her desire for sexual gratification and all these persons, at the first instance, went along with said Smt. Ratni upon motor-cycle from Public Park Chittorgarh to Apsara Talkies and from the Apsara Talkies to village Pandoli where they purchased bottle of water and bidies; and thereafter, they all went to a house near the power-house where they consumed liquor. Thereafter as per consent of the said girl, they had intercourse with Smt. Ratni. Thereafter, deceased Jagdish Suthar and accused Ratan Lal sat together and again consumed liquor while witnesses Pokar Lal and Smt. Ratni left that place. At that time both Ratan Lal and Jagdish Suthar were consuming liquor. As per statement of PW-11 Pokar Lal no untoward incident took place in front of them. But, the trial Court relied upon their testimony for "last seen" deceased Jagdish Suthar with accused-appellant Ratan Lal. 13. According to learned counsel for the appellant when no incident of murder took place in front of PW-11 Pokar Lai and PW-22 Smt. Ratni, then how it can be presumed that the accused-appellant is guilty of the offence. While inviting attention of the Court towards statement of PW-22 Ratni, it is submitted that nothing has been said by her except intercourse with her consent with the accused-appellant and other persons, therefore, the trial Court has committed gross while relying upon the evidence of PW-6 Madan Puri, PW-11 Pokar Lal and PW-22 Smt. Ratni. Upon the face value of statements of these prosecution witnesses it is abundantly clear that they did not see any incident, therefore, the trial Court committed grave error while convicting the accused-appellant for offence under Section 302 I.P.C. The accused-appellant stated correct fact with regard to the way in which the incident took place and submits that his version is well supported by the evidence of Dr. Kamal Bhargava, PW-12 and Dr. Kamal Bhargava, PW-12 and Dr. Sanjay Pareek, PW-13. PW-12, Dr. Kamal Bhargava stated in his statement that post mortem report, Ex.P-12 was prepared by him, in which, some simple injuries were found but liquor was found in the body of the deceased which is ethyl alcohol and as per his opinion, the cause of death was asphyxia which occurred due to mechanical pressure; meaning thereby, as per the opinion of the doctor although there were some injuries like abrations and contusion found upon the body but cause of death was asphyxia. Therefore, it cannot be said that the prosecution has adduced any evidence to connect the accused-appellant with the crime. Moreso, the accused-appellant himself clarified in his statement recorded under Section 313 Cr.P.C. that deceased Jagdish Suthar consumed excessive liquor and he was trying to take him to hospital but, in between the way, he died, therefore, he left his body upon the motor-cycle and himself went away from the place. Therefore, of there is strength in the statement of the accused-appellant which is well corroborated by the medical evidence. It is therefore, prayed that the finding of guilt arrived at by the learned trial Court against the accused-appellant may be quashed and the appellant may be acquitted. 14. Per contra, learned Public Prosecutor vehemently opposed the prayer and submits that the prosecution has adduced sufficient and reliance evidence before the Court to prove the prosecution case, therefore, the argument advanced by learned counsel for the appellant with regard to innocence of the accused-appellant is not justified. Learned Public Prosecutor submits that PW-6 Madan Puri, PW-11 Pokar Lal and PW-22 Smt. Ratni categorically said that before the incident the accused-appellant Ratan Lal, deceased Jagdish Suthar, PW-22 Smt. Ratni and PW-11 Pokar Lal were together in a house where they consumed liquor and also committed intercourse with Smt. Ratni. Therefore, if at all, the appellant's explanation is accepted then the question arises why he did not inform the Police Station soon after leaving the place, therefore, on this count alone, presumption can be drawn that the trial Court alone, presumption can be drawn that the trial Court has rightly relied upon the testimony of the prosecution witnesses. 15. Learned Public Prosecutor further submits that at the time of post mortem some injuries were found upon the body of the deceased and as per opinion of Dr. 15. Learned Public Prosecutor further submits that at the time of post mortem some injuries were found upon the body of the deceased and as per opinion of Dr. Kamal Bhargava, PW-12 the cause of death was asphyxia which occurred due to mechanical pressure, therefore, it cannot be said that any error has been committed by the trial Court while adjudging the evidence on record for the purpose of conviction. More so, the trial Court has rightly relied upon the material available on record. According to the learned Public Prosecutor, there is no strength in the argument of learned counsel for the appellant that the accused-appellant has been falsely implicated in this case; more so, there is reliable evidence on record upon which the trial Court gave finding that the accused-appellant is guilty for committing offence under Section 302 I.P.C. 16. After hearing learned counsel for the appellant as well as learned Public Prosecutor, we have scanned the entire evidence produced on record by the prosecution. 17. Admittedly, information was given on 3.5.2004 by complainant Jagdish Chandra Pareek, PW-4 at Police Station Chanderiya (District Chittorgarh) with regard to the fact that motor-cycle No. RJ-09-3M-4667 (Bajaj Boxer) is standing on the road at Pandoli ki Chhapar upon which dead body of one person is lying with backside up, upon which investigation was commenced and for want of jurisdiction the proceedings registered under Section 174, Cr.P.C. by the Police Station Chanderiya was forwarded to the Police Station Kotwali, Chittorgarh where F.I.R. No. 267 dated 7.5.2004, Ex.P-20 was registered. The investigation was commenced but the accused-appellant was arrested vide Ex.P-13 on 20.12.2004 after more than seven months. As per the prosecution case the fact with regard to the involvement of the accused-appellant came to the knowledge of the Investigating Officer when investigation was made from PW-6 Madan Puri. PW-6 Madan Puri was examined the in the Court, in which, it is stated by him that the accused-appellant, present in the Court, was driving the motor-cycle on the relevant date before one year when he was going in his tempo from Mataji-ka-Than to Chittorgarh. According to this witness he saw the accused-appellant driving the motor-cycle upon which one person was lying upon the petrol tank of the motor-cycle and his hand was hanging. According to this witness he saw the accused-appellant driving the motor-cycle upon which one person was lying upon the petrol tank of the motor-cycle and his hand was hanging. At that time, he presumed that probably he consumed liquor, therefore, the motor-cycle driver is taking him to his home; but in the evening he heard whisper in the village Ganeshpura that one dead body is lying upon the motor-cycle; meaning thereby, as per the statement of PW-6 Madan Puri, the fact of the incident came to his knowledge but for near about eight months, till his statement under Section 161 Cr.P.C. was recorded by the police on 13.12.2004. Neither any information was given by him to the police nor the said fact was narrated by him; but the trial Court relied upon the testimony of the said witness in which above fact was narrated by him. In his cross-examination, it is stated by him that, " bl ?kVuk ds djhcu 7&8 eghus ckn esa tkdj y{e.k us esjs ls e`rd ds ckjs esa iwNk Fkk] eSaus jruyky o ml vKkr O;fDr ds ckjs esa y{e.k dks crk;k Fkk mlds djhcu 5&7 fnu ckn iqfyl us esjs c;ku fy;s FksA " meaning thereby, as per the testimony of this witness the incident of taking a person upon motor-cycle in toxic condition by the accused-appellant came to his knowledge on the relevant date but he kept mum for near about 7-8 months. 18. In our opinion, in the circumstances in which the police investigated the matter and recorded the statement of this witness no person can be held guilty for the offence under Section 302 I.P.C. It is also worthwhile to observe that in the statement made by PW-6 Madan Puri it is nowhere stated by him that he saw the accused-appellant causing any injury; meaning thereby, the evidence of this witness may be trustworthy but such testimony cannot connect the appellant with commission of offence under Section 302 I.P.C. 19. In this case, PW-2 Daulat Ram, PW-3 Ramesh Chandra, PW-8 Jitendra Singh and PW-10 Mahendra turned hostile and did not support the prosecution story. 20. The finding of the learned trial Court is based upon the statements of PW-6 Madan Puri, PW-11 Pokar Lal and PW-22 Smt. Ratni. In this case, PW-2 Daulat Ram, PW-3 Ramesh Chandra, PW-8 Jitendra Singh and PW-10 Mahendra turned hostile and did not support the prosecution story. 20. The finding of the learned trial Court is based upon the statements of PW-6 Madan Puri, PW-11 Pokar Lal and PW-22 Smt. Ratni. Upon perusal of the statements of PW-11 Pokar Lal and PW-22 Smt. Ratni, it comes out that both these witnesses also kept mum for near about 7-8 months and Investigating Officer recorded the statements of PW-1J Pokar Lal and PW-22 Smt. Ratni recorded on 18.1.2005 and thereafter, their statements were recorded as Ex.P-11 and P-19 by the Addl. Civil Judge (Jr. Dn.) and Judl. Magistrate, Chittorgarh on 29.1.2005. It is very strange that both these witnesses who were said to be with the accused-appellant on 3.5.2004 but they kept mum and did not narrate the factual aspect of the matter before the police. 21. Before the trial Court, statements of PW-11 Pokar Lal and PW-22 Smt. Ratni were recorded. We have perused their statements. Both these witnesses are not eye-witness of any incident nor they allege anything incriminating against the accused-appellant for committing offence under Section 302 I.P.C. Upon perusal of their statements it emerges that Smt. Ratni, PW-22 accused-appellant Ratan Lal, deceased Jagdish Chandra and Pokar Lal, PW-11, they all went together upon motor-cycle and in village Pandoli near the power-house they consumed liquor and as per consent of Smt. Ralni, accused-appellant Ratan Lal, deceased Jagdish Chandra and Pokar Lal had intercourse with Ratni. There is no whisper in the statements of PW-11 Pokar Lal and PW-22 Smt. Ratni that anything happened in front of them with regard to involvement of the accused-appellant for committing offence under Section 302 I.P.C. The only assertion by these witnesses is that they went from the house where they consumed liquor but deceased Jagdish Chandra and accused-appellant Ratan Lal stayed there. PW-11 made following statement, which reads as under: " ge okfil ckgj vk;s rks jruyky o txnh'k lq/kkj ogh ij Fks] vkSj eSa vkSj og yM+dh ogka ls uhps vkdj jokuk gks x;s Fks] ge jokuk gq, rks jruyky o txnh'k us gesa vkokt nh fQj dgk fd rqe tkvks] bl ij ge nksuksa eSa vkSj yM+dh nksuksa ogka ls vk x;s Fks] VSEiksa esa cSBdj fpRrkSM+x<+ vk x;sA " Similarly, PW-22 Smt. Ratni stated in her statement that: " ftl eksVjlkbZfdy ij eSa jru ds lkFk xbZ mlh eksVjlkbZfdy ij ge nks ds vykok iksdj] ,d tuk vkSj Fkk mldk uke eSa ugha tkurh gwWa] dqy pkj tus eksVjlkbZfdy ij FksA jru tkV us ogka ij esjs lkFk iksdj ls o ,d nwljs vkneh ls [kksVk dke djok;k vkSj mlds eq>s nks&nks lkS :i, dqy pkj lkS :i, fn,] fQj eSaus dke djok dj eSa rks iksdj ds lkFk vkbZ jru tkV eqyfte vkSj pkSFkk vkneh tks gekjs lkFk Fkk oks ogha jgs vkSj nk: ih jgs FksA " 22. Upon perusal of statements of both these witnesses, we are of the opinion that such evidence is not sufficient to convict any accused for offence under Section 302, I.P.C. But, we have examined the testimony of these witness in the light of the statement of the accused himself. In his subsequent statement recorded under Section 313 Cr.P.C. the accused-appellant in reply to question No. 5 made the following statement: " eSaus o e`rd txnh'k lqFkkj us lkFk 'kjkc ih e`rd dh rfc;r T;knk [kjkc gks jgh Fkh blfy, bykt gsrq mls fpRrkSM+ 'kgj yk jgk Fkk] jkLrs esa ,slk yxk fd ;g ej pqdk gS rks eSa NksM+ dj vk x;k] eSaus mls ugha ekjk] og esjk nksLr FkkA " 23. Upon perusal of the above statement of the accused and statements of PW-11 Pokar Lal and PW-22 Smt. Ratni, the fact of incident of consuming liquor and having intercourse with Smt. Ratni by the accused-appellant, deceased Jagdish Suthar and Pokar Lal is of course proved but upon assessment of evidentiary value of these witnesses it cannot be said that any circumstance arose in front of them for committing murder of Jagdish Suthar by the accused-appellant. More so, upon appreciation of the statement made by the accused under Section 313, Cr.P.C., the accused-appellant took deceased Jagdish Suthar to the hospital at Chittorgarh while taking him upon the motor-cycle but, in between the way, when the condition of deceased Jagdish Suthar completely deteriorated, then, he left him on the motor-cycle and came away from the place and did not inform anybody else. Upon perusal of the statement of the accused, we are of the opinion that the accused-appellant himself is corroborating the version put forth by the prosecution witnesses PW-6 Madan Puri, PW-11 Pokar Lal and PW-22 Smt. Ratni to the extent of taking deceased Jagdish Suthar upon motor-cycle. Therefore, we have minutely considered the circumstances in which the accused-appellant made statement before the Court under Section 313 Cr.P.C. 24. In our opinion, the prosecution has not produced any reliance or transparent evidence to connect the accused-appellant with the crime. It might be possible that the accused-appellant was trying to take deceased Jagdish Suthar to hospital because he was under heavily drunken state which is proved from the post mortem report Ex.P-12 dated 4.5.2004 and report of the F.S.L., Ex.P-13 dated 4.6.2005, in which following opinion was given by the F.S.L.: "On chemical examination, portions of viscera (1-5) from two packets marked 1 and 2 gave positive tests for the presence of Ethyl Alcohol and gave negative tests for metallic poisons, Methyl Alcohol, cyanide, alkaloids, barbiturates, tranquillizers and insecticides." 25. Upon perusal of the aforesaid report, it is abundantly clear that packets marked 1 and 2 which is portions of viscera of deceased Jagdish Suthar and piece of liver, kidney, the same gave positive test for the presence of Ethyl Alcohol and gave negative test for the presence of metallic poisons, Methyl Alcohol, cyanide, alkaloids, barbiturates, tranquillizers and insecticides; meaning thereby, there is strength in the statement of accused-appellant recorded under Section 313 Cr.P.C. Therefore, the trial Court completely ignored the important circumstances which existed in the evidence produced by the prosecution. 26. In our opinion, upon such type of circumstances and evidence, it is not safe to convict a person for offence under Section 302 I.P.C. The entire evidence in this case is shrouded with doubts because each circumstance is accompanied by an otherwise probability also. 26. In our opinion, upon such type of circumstances and evidence, it is not safe to convict a person for offence under Section 302 I.P.C. The entire evidence in this case is shrouded with doubts because each circumstance is accompanied by an otherwise probability also. In the investigation, no allegation with regard to beating, or scuffle, or quarrel is there nor there is any recovery of any weapon. Merely on the basis of fact that the deceased was last seen before the occurrence by PW-11 Pokar Lal and PW-22 Smt. Ratni, without there being connecting chain of circumstances leading to an irresistible conclusion for commission of the offence of murder by the accused-appellant, it cannot be said that the prosecution has proved its case beyond reasonable doubt. 27. In this case, the defence given by the accused-appellant can also be treated to be true because the said fact is corroborated by the prosecution witnesses also. Therefore, the subsequent statement of the accused-appellant recorded under Section 313 Cr.P.C., cannot simply be brushed aside. Therefore, upon careful scrutiny of the entire evidence, we are of the opinion that the prosecution has failed to prove its case beyond reasonable doubt for conviction of the accused-appellant for commission of offence under Section 302, I.P.C. and the accused-appellant is entitled to the benefit of doubt. 28. Consequently, this jail appeal is allowed. Impugned judgment of conviction of the accused-appellant Ratan Lal for offence under Section 302 I.P.C. and order of sentence dated 3.1.2006 passed in Sessions Case No. 20/2005 by the Addl. Sessions Judge (Fast Track), Chittorgarh is hereby quashed and set aside. The appellant is in jail. He shall be set at liberty forthwith if not wanted in any other case.Appeal allowed. *******