JUDGMENT 1. - The present appeal is preferred by the State against the judgment dated 9.11.1992 passed by the learned Sessions Judge, Jalore (for short 'the trial Court') in Sessions Case No. 5/1992 whereby the learned trial Court has acquitted the accused-respondents Sukh Ram and Bhika Ram for the offence punishable under Sections 147, 302/149 and 379 I.P.C., accused respondent Heera Ram for the offence punishable under Sections 147, 302/149 I.P.C. and accused-respondents Mangi Lal and Jagmal for the offence punishable under Sections 147 and 302 I.P.C. 2. Brief facts of the case are that in the early morning of 21.7.1991, one Sukh Ram had informed Joga Ram (PW-18), S.H.O., Jhab on telephone that a dead body is lying near water tank in village Jhab. On receiving this information, Joga Ram, (PW-18) reached village Jhab, where Ganpat Singh (PW-14) gave a written report Exhibit P-24 wherein it was alleged that his brother Manohar Singh had gone to Sanchore at about 7.30 A.M. on 19.7.1991 and never returned however, today, Asu Ram S/o Chena (PW-16) informed him that yesterday night when he was going to the field of Bhawani Singh, he saw Sukhram S/o Surjan Ram, Bhikha S/o Heera, Master Hari Ram and Mangi Lal S/o Bhera Ram and other persons beating Manohar Singh. It is further stated in the written report (Exhibit P-24) that after receiving information from Asu Ram, he inquired about his brother Manohar Singh at his residence and while searching, found his dead body lying near the water lank. Ganpat Singh (PW-15) alleged that the persons named in report have killed Manohar Singh. 3. On receiving this report (Exhibit P-24), police registered a case against the accused persons namely Sukh Ram, Bhika Ram, Hari Ram, Mangi Lal and one unknown person for the offence punishable under Sections 147, 149, 302 I.P.C. After investigation, police filed charge-sheet against all accused respondents and the matter was committed to the learned trial Court, which framed charges against accused respondents Sukh Ram and Bhikha Ram for the offence punishable under Sections 147, 302/149 and 379 I.P.C., against the accused respondents Jagmal and Mangi Lal for the offences punishable under Sections 147 and 302 I.P.C. and against accused respondent Hari Ram for the offences punishable under Sections 302/149 and 147 I.P.C. The accused-respondents have denied the charges and claimed trial. 4. 4. During the course of trial, the prosecution produced as many as 20 witnesses and also exhibited 34 documents. The statements of accused-respondents were recorded under Section 313 Cr.P.C. and 2 documents were exhibited on behalf of the defence. After conclusion of the trial, the learned trial Court acquitted the accused respondents from the charges levelled against them. Hence, the State has preferred this appeal. 5. The learned Public Prosecutor has vehemently argued that the learned trial Court erred in acquitting the accused-respondents from the charges levelled against them. It is contended by the learned Public Prosecutor that by producing cogent evidence, prosecution had proved that the accused-respondents had committed murder of Manohar Singh son of Bhanwar Singh in the night of 20.7.1991, however, the learned trial Court committed error in disbelieving the evidence produced by the prosecution. The learned Public Prosecutor has further contended that the prosecution was able to prove the charges against the accused respondents by producing the evidence of eye-witness, last seen, recovery of articles (belonging to the deceased) at the instance of accused Sukh Ram and Bhika Ram. The prosecution also proved the identity of accused Jagmal and the fact of unnatural death of deceased Manohar Singh by producing medical evidence to this effect. 6. Learned Public Prosecutor has argued that the learned trial Court was wrong in disbelieving the eye-witness Asu Ram (PW-16), though there was no material contradiction in the statement of Asu Ram (PW-16). It is further contended by learned Public Prosecutor that the fact that accused-respondents were last seen in the company of deceased Manohar Singh in the night of 20.7.1991 was proved by the testimony of witnesses Punma Ram (PW-2), Bhanwar Singh (PW-5), Guman Singh (PW-6) and Moola Ram (PW-7). However, the learned trial Court disbelieved the statements of those witnesses of last seen without giving any cogent reasons. The learned Public Prosecutor has further submitted that the recovery of bag and umbrella of deceased Manohar Singh, at the instance of Sukh Ram and Bhika Ram, was proved by the prosecution, but, the learned trial Court disbelieved the said recovery without any just reason. The learned Public Prosecutor has further submitted that the recovery of bag and umbrella of deceased Manohar Singh, at the instance of Sukh Ram and Bhika Ram, was proved by the prosecution, but, the learned trial Court disbelieved the said recovery without any just reason. The learned Public Prosecutor has further contended that the recovered bag as well as umbrella were identified by Ganpat Singh (PW-15) during the identification parade conducted in the presence of the then Munsif and Judicial Magistrate, Bhinmal but the learned trial Court disbelieved the said identification observing some technical defects of minor nature. Therefore, the learned Public Prosecutor has argued that the prosecution had proved the guilt of the accused-respondents by producing cogent and strong evidence, but the learned trial Court wrongly acquitted the accused-respondents and, therefore, he prayed for setting aside the impugned judgment of learned trial Court and also prayed that the accused-respondents may be convicted and sentenced for the charges levelled against them. 7. Per contra, Mr. Vineet Jain, learned counsel for the accused-respondents has supported the impugned judgment and argued that there is no illegality in the judgment passed by the learned trial Court. Mr. Jain contended that evidence, suggesting accidental death of deceased, was available on record and Ganpat Singh (PW-14) falsely implicated the accused-respondents in the case of murder of Manohar Singh. It is contended by the learned counsel for the accused-respondents that from the Postmortem Report (Exhibit P-25), it can be gathered that the deceased had received all the injuries on the right side of his body and looking to the size of the injuries, it can very well be presumed that the same cannot be caused by fists or hands and there was possibility that the deceased had suffered these injuries on account of an accident as Dr. R.P. Sharma (PW-15), also opined that the injuries on the ribs of deceased, were more likely to be caused on account of accident. It is further contended by the counsel for the accused-respondents that initially the police also started investigation on the theory of accident as evident from the statement of Avatar Singh (PW-17),but later on the respondents were charged for murder of Manohar Singh and, therefore, in such circumstances, possibility of false implication of accused respondents, at the instance of Ganpat Singh (PW-14) and other witnesses, cannot be ruled out. 8. 8. Learned counsel for the accused-respondents has also argued that there was great delay in recording the statement of alleged eye-witness Asu Singh (PW-16) and the Investigating Officer failed to give sufficient explanation for the said delay and this fact in itself sufficient to show that Asu Singh (PW-16) was planted witness and learned trial Court had not committed any error in discarding his testimony. 9. It is also argued by Mr. Jain that the prosecution had failed to prove the fact that the deceased Manohar Singh was last seen in the company of the accused respondents as the evidence of last seen witnesses, such as Punma Ram (PW-2), Mangu Singh (PW-3), Bhanwar Singh (PW-5), Guman Singh (PW-6) and Mula Ram (PW-7) have rightly been disbelieved by the learned trial Court as those witnesses have failed to establish the fact that the deceased was last seen in the company of respondent in the night of 20.7.1991. The learned counsel for the respondents has further contended that there was no evidence available on record, other than the evidence of Ganpat Singh (PW-14), suggesting that when deceased left the house on 19.7.1991 in the morning, he was carrying a bag as well as an umbrella with him, but since he was not residing with the deceased Manohar Singh in the same house he could not have the knowledge of this fact and, therefore, the trial Court has rightly discarded his testimony. It is further contended by counsel for the accused-respondents that the articles, alleged to have been recovered at the instance of Sukh Ram and Mangi Lal, were not bearing any specific mark connecting them with the deceased and such type of bag and umbrella are common articles easily available in the market, as such the recovery of such articles cannot be made basis for convicting the respondents. Learned counsel for the accused-respondents has, therefore, prayed that the appeal preferred by the State is liable to be dismissed. 10. We have considered the arguments of learned counsel for the parties and thoroughly examined the record. 11. From the record, it appears that the prosecution had produced direct as well as indirect evidence to prove the guilt of the accused-respondents. 10. We have considered the arguments of learned counsel for the parties and thoroughly examined the record. 11. From the record, it appears that the prosecution had produced direct as well as indirect evidence to prove the guilt of the accused-respondents. In relation to direct evidence, the prosecution had produced Asu Ram (PW-16), who stated that he saw the accused-respondents assaulting Manohar Singh in the night of 20.7.1991, however, in the form of indirect evidence, the prosecution had produced six witnesses to prove the fact that the deceased was last seen in the company of accused-respondents. The prosecution had also tried to connect the accused Sukh Ram and Bhika Ram with the commission of crime by recovering bag as well as umbrella at their instance. 12. The learned trial Court disbelieved the testimony of alleged eyewitness Asu Ram (PW-16) while taking into consideration his unnatural conduct and several contradictions in his statements. The learned trial Court observed that the alleged eye-witness Asu Ram had failed to identify one of the accused and, therefore, his presence, at the alleged scene of crime, was doubtful. The learned trial Court further not found the evidence of last seen convincing and disbelieved the statements of Bhanwar Singh (PW-5) and other witnesses. 13. The identification of the accused-respondents Jagmal and recovered articles were disbelieved by the learned trial Court on the ground that the description of the accused Jagmal and the recovered articles have not been properly mentioned in the Memo of identification (Exhibit P-4) prepared by Prashant Kumar Sharma (PW-9). The learned trial Court had taken into consideration the delay caused by the police in recording statements of witnesses and the manner in which the recovery of the bag and the umbrella had been made and after taking into consideration the several aspects of the matter, the learned trial Court acquitted the accused-respondents vide judgment dated 9.11.1992. 14. In view of the arguments advanced by learned counsel for the parties, we have proposed to scrutinise the evidence produced by the prosecution to prove the guilt of the accused-respondents.Evidence of eye-witness Asu Ram (PW-16) 15. The eye-witness Asu Ram (PW-16) stated that he knew Bhawani Singh resident of village Jhab from last about 9-10 months. 14. In view of the arguments advanced by learned counsel for the parties, we have proposed to scrutinise the evidence produced by the prosecution to prove the guilt of the accused-respondents.Evidence of eye-witness Asu Ram (PW-16) 15. The eye-witness Asu Ram (PW-16) stated that he knew Bhawani Singh resident of village Jhab from last about 9-10 months. On 20.7.1991 at about 11.00 P.M. he went to the house of Bhawani Singh for hiring tractor but he asked him to fetch the same from his agriculture field, then he proceeded towards Bhawani Singh's field and on the way, he spotted a jonga vehicle parked with lights on, where Sukh Ram, Mangi Lal, Bhikha Ram and 2-3 other persons were beating Manohar Singh of village Jhab. Two persons were armed with lathes, out of which, one was Mangi Lal and another person was not known to him but later on, he came to know him as Jagmal. Asu Ram further stated that when he tried to stop the accused persons from beating Manohar Singh, they threatened him and then he went to the agricultural field of Bhawani Singh, where he did not find the tractor and, therefore, he slept there; in the morning, he went to the house of Ganpat Singh and asked him whether Manohar Singh returned or not because he had some quarrel in the night. There Ganpat Singh went to Manohar Singh's house and he left for village Goliya. 16. In the cross-examination, Asu Ram (PW-16) had stated that police recorded his statements twice and admitted that after informing Ganpat Singh, he left for village Goliya and returned after 2-3 days and thereafter got recorded his statement to the police after 4-5 days. He stated that he had not raised any alarm when the accused persons were assaulting Manohar Singh and also admitted that he had not informed about the incident to the police immediately. It is pertinent to note here that in Court statements, Asu Ram had not named Hari Ram as accused and also failed to identify him in the Court. He also made some contradictory statements about the time of reaching at the house of Ganpat Singh in the morning. 17. It is pertinent to note here that in Court statements, Asu Ram had not named Hari Ram as accused and also failed to identify him in the Court. He also made some contradictory statements about the time of reaching at the house of Ganpat Singh in the morning. 17. It is observed that Bhawani Singh, the person allegedly approached by Asu Ram (PW-16) for hiring tractor and in whose field he slept in the night of 20.7.1991, had not been examined by the prosecution though he was named in the list of witnesses. It is also observed that though Asu Ram stated that he saw the accused persons assaulting Manohar Singh, but not raised any alarm and also not informed about the same to any person while passing through several houses of village Jhab. As per the statement of Asu Ram (PW-16), after informing Ganpat Singh, he left for village Goliya and remained there for 2-3 days in the search of a tractor and thereafter got his statement recorded in the police for the first time on 26.7.1991. 18. From the above, it is clear that the conduct of Asu Ram (PW-16) cannot be said to be natural as even after witnessing assault on Manohar Singh by the accused persons, he went to the field of Bhawani Singh and slept therein the night and not informed to anyone about the incident. In his statement, he failed to give any description about the blows given by the accused persons on the body of the deceased Manohar Singh and he had not named Hari Ram as assailant and even failed to identify him. The statement of eye-witness Asu Ram (PW-16) was recorded by the police after a delay of 4-5 days. Ganpat Singh (PW-14) specifically named Hari Ram in the complaint (Exhibit P-24) but Asu Ram (PW-16) had not named Hari Ram in his statement and this fact creates doubt about the version given by the alleged eye-witnesses Asu Ram (PW-16). 19. The statement of eye-witness Asu Ram (PW-16) was recorded by the police after a delay of 4-5 days. Ganpat Singh (PW-14) specifically named Hari Ram in the complaint (Exhibit P-24) but Asu Ram (PW-16) had not named Hari Ram in his statement and this fact creates doubt about the version given by the alleged eye-witnesses Asu Ram (PW-16). 19. So far the identification of the accused Jagmal, at the instance of Asu Ram (PW-16) is concerned, it can be said that the same cannot be relied since the prosecution failed to prove that from the date of arrest and till the identification parade, Jagmal was kept in hiding and Prashant Kumar (PW-9) specifically admitted that Asu Ram (PW-16) had not stated anything about the incident at the time of identification parade and in such circumstances, the identification of accused Jagmal was not free from doubt because in the Memo of identification (Exhibit P-4), the description of the accused Jagmal had not been given and the accused Jagmal had raised an objection that he was shown to Asu Ram (PW-16) prior to this identification. 20. Looking to these over all circumstances, it is not safe to rely on the testimony of Asu Ram (PW-16) and it can be said that the evidence of eyewitness is not conclusive to prove the guilt of the accused-respondents for the charges levelled against them.Evidence of last seen 21. For the purpose of proving the fact that the deceased was last seen in the company of accused-respondents, the prosecution had produced the witnesses Mala Ram (PW-1), Punma (PW-2), Mangu Singh (PW-3), Bhanwar Singh (PW-5), Guman Singh (PW-6) and Moola Ram (PW-7). 22. Mala Ram (PW-1) had not supported the prosecution story and was declared hostile and, therefore, the statement of Mala Ram (PW-1) was of no help for the prosecution. Punma Ram (PW-2) stated that he heard the voice of Manohar Singh but had not seen Manohar Singh. It was specific admission of Punma Ram (PW-2) that he did not saw Manohar Singh and it was Hari Ram who told him that the person calling is Manohar Singh. Therefore, it is clear that he had not seen Manohar Singh along with accused Hari Ram. Mangu Singh (PW-3) admitted that he saw Manohar Singh alone and none of the accused persons was with him. Therefore, it is clear that he had not seen Manohar Singh along with accused Hari Ram. Mangu Singh (PW-3) admitted that he saw Manohar Singh alone and none of the accused persons was with him. Guman Singh (PW-6) stated that he did not see Manohar Singh along with the accused persons. Similarly Moola Ram (PW-7) stated about the presence of accused persons in Jonga vehicle but not stated that Manohar Singh was along with the accused-respondents. However, Bhanwar Singh (PW-5) stated that on 20.7.1991, when he was going on the tractor along with the Mala Ram (PW-1) and one other person than in between the way from Borali to Jhab, a jonga jeep came in which Sukh Ram, Bhika Ram, Hari Ram, Mangi Lal, Jagram were present along with Manohar Singh. Sukhram asked about the driving licence and demanded money from the tractor driver. The tractor driver gave Rs. 20/- to Jag Ram and thereafter they went away from there. It is observed that the statement of Bhanwar Singh (PW-5) was recorded by the police after 20-22 days of the incident. He stated that before giving statement to police, he had not informed to anyone about the incident in which the accused persons along with Manohar Singh took Rs. 20/- from the tractor driver. Mala Ram (PW-1), who was stated to be on the tractor with him, had not supported the prosecution story and denied that he ever went on the tractor along with the Bhanwar Singh on the day of incident. He specifically stated that he did not know the deceased Manohar Singh and no one had stopped the tractor in the night of 20.7.1991 and also not asked about the documents of the tractor and money. 23. Looking to the delay in recording the statement of Bhanwar Singh (PW-5) by the police and in view of the specific denial by Mala Ram (PW-1), the evidence of this witness is not conclusive to prove the fact of last seen of deceased Manohar Singh along with the accused persons. It cannot be ignored that before the learned trial Court, this witness failed to identify the accused Mangi Lal and Jagmal. 24. In the above circumstances, we are of the view that the prosecution had failed to prove the fact that the deceased was last seen in the company of the accused persons in the night of 20.7.1991.Evidence of recovery 25. 24. In the above circumstances, we are of the view that the prosecution had failed to prove the fact that the deceased was last seen in the company of the accused persons in the night of 20.7.1991.Evidence of recovery 25. Nag Singh (PW-8) had verified the Memos of information (Exhibit P-2 and P-3) given by the accused Sukh Ram and Mangi Lal and stated that when he along with police reached the house of Sukh Ram, he gave information about the bag and on receiving this information, Memo of recovery (Exhibit P-3) was prepared by the police in his presence at the house of Sukh Ram. He further stated that accused Bhika Ram gave information to the police at his house regarding the umbrella and the police prepared Memo of Information (Exhibit P-2) in his presence, at the house of Bhika Ram. However, Bhanwar Singh (PW-11), the Recovery Officer deposed that informations regarding the bag and the umbrella were given by the accused Sukh Ram and Bhika Ram in the Police Station, where only the memos regarding the said informations, were prepared. Looking to the contradiction in testimony of both the witnesses, no reliance can be placed on the recovery of the bag and the umbrella, alleged to have been made at the instance of the accused Sukh Ram and Bhika Ram. 26. None of the family members of the deceased Manohar Singh identified the articles bag and umbrella, confirming that the same belong to deceased Manohar Singh. From the evidence of Ganpat Singh (PW-14), it is clear that he was not residing along with his brother and he had also not specifically stated that on 19.7.1991, he saw Manohar Singh carrying the bag as well as umbrella. It is also pertinent to note here that there were no specific marks on the recovered bag and umbrella indicating that the same belonged to deceased Manohar Singh. In the absence of this nature of evidence, the recovery of the bag and umbrella, made at the instance of accused Sukh Ram and Bhika Ram, was of no use and help for the prosecution. In the absence of this nature of evidence, the recovery of the bag and umbrella, made at the instance of accused Sukh Ram and Bhika Ram, was of no use and help for the prosecution. It is observed that Prasant Kumar (PW-9), admitted that he had not seen the mixing of articles along with other things, and also not mentioned any description in the column No. 4 of memo of identification (Exhibit P-4) about mixing of recovered articles with the things of same nature, therefore, in such circumstances, the identification of the articles was not beyond doubt and reliance on such identification is not safe.Medical Evidence 27. From the Post Mortem Report (Exhibit 25), it reveals that the deceased Manohar Singh had received the following injuries : "(1) Lacerated wound 1.5 cm x Yz cm on medial canthus of Rt. eye. (2) Lacerated wound 1 cm x Vi x 14 cm on upper lip. (3) Abraded contusion 10.6 cm on Rt. chest. (4) Contusion 8 cm x 4 cm on Rt. illiactops. (5) Abrasion 2.5 cm x 2 cm on medial side of Rt. elbow." In the Post Mortem Report (Exhibit 25) the cause of death is mentioned as such: "In our opinion of the cause of death of Manohar Singh S/o Bhanwar Singh is shock due to laceration of Rt. lung and liver." 28. Dr. R.P. Sharma (PW-15) admitted in cross-examination that the injuries No. 3 and 4 were more likely to be caused on account of accident then the fists. Asu Singh (PW-16) had not given any description regarding the injuries alleged to be caused by the accused persons. Awatar Singh (PW-17) admitted that Jai Ram, the earlier Investigation Officer, worked on the theory of accident. All the injuries, as described in the post mortem report (Exhibit P-25), were on the right side of the body of the deceased Manohar Singh. The size of injuries No. 3 and 4 was extra large and there was a possibility that the same had been caused on account of accident and not by fists, as suggested by Dr. R.P. Sharma (PW-15). 29. The size of injuries No. 3 and 4 was extra large and there was a possibility that the same had been caused on account of accident and not by fists, as suggested by Dr. R.P. Sharma (PW-15). 29. In view of overall circumstances, and in the absence of any credible evidence to link the accused-respondents with the injuries caused, it was a possible view that the injuries on the body of the deceased Manohar Singh were caused on account of accident and not on account of assault by the accused respondents, as alleged by the prosecution. 30. Apart from it, it is observed that Joga Ram (PW-18) stated that he got the information regarding the dead body from one Sukhram, a driver. However, no such, documentary evidence with regard to said information had been produced by the prosecution nor Sukhram was produced by the prosecution as witness and this fact goes against the prosecution because a vital information had been withheld by the prosecution regarding the first information received in respect of dead body of deceased Manohar Singh. 31. After careful scrutiny of the evidence and the material available on record, we are satisfied that the prosecution failed to prove the charges against the accused-respondents and on the basis of the evidence and the material available on record, it was not safe to convict the accused-respondents Sukh Ram and Bheeka Ram for the offence punishable under Sections 147, 302/149 and 379 I.P.C., accused respondent Heera Ram for the offence punishable under Sections 147,302/149 I.P.C. and accused-respondent Mangi Lal and Jagmal for the offence punishable under Sections 147 and 302 I.P.C. and the learned trial Court had not committed any error in acquitting the accused-respondents from the above charges.Hence, the appeal preferred by the State fails and is hereby dismissed.Appeal dismissed. *******