JUDGMENT 1. - Instant criminal appeal has been filed by the State of Rajasthan under Section 378 Cr.P.C. against the judgment dated 20.03.1991 passed by learned Sessions Judge, Sriganganagar in Sessions Case No. 21/1990 under Section 302 IPC by which the learned Trial Judge acquitted the respondent Mohan Singh from the charges levelled against him under Section 302 IPC. 2. As per brief facts of the case, FIR No. 91/1990 Ex.P/1 under Section 302/34 IPC was registered at Police Station Sadar, Sriganganagar on the basis of written complaint filed by Babu Lal PW/1 in which the complainant alleged that I and my elder brother Ram Kumar residing in Ashok Nagar and about 7:30 PM, Dharma s/o Richhpal, Ram Singh S/o Mailal came to my residence and they were talking in the house while taking liquor. At that time I left the house and went to the shop of Dinesh and came back at 9 PM. At that time I heard notice and one person informed me that somebody has been killed and so many persons are standing on the way. 3. PW/1 Babu Lal further stated in the FIR Ex.P/1 that I went to the place where number of persons were standing and saw that body of my brother Ram Kumar was lying and he was dead, blood was coming out from his head. At that time, one Hamid S/o Abraham and Billu @ Naresh informed that my brother Ram Kumar has been killed by Dharma, Ram Singh Dhanak and one another person while inflicting injuries by sword and all ran away from the place of occurrence. It is also stated that we went t the house of Dharma and caught him and my brother's wife Anguri informed that Dharma and Ram Singh after taking liquor ate food and left at that time, they asked my brother to go with them to see picture but my brother's wife refused but Dharma and Ram Singh forcibly took away my brother while saying that drop us to Meera Chowk. It is also alleged in the FIR that my brother has been killed by Ram Singh because there is enmity with regard to dispute of truck, therefore, action may be taken against the accused respondent. 4. Upon aforesaid statement of PW/1 Babu Lal, FIR was registered and thereafter, regular investigation was commenced. 5. It is also alleged in the FIR that my brother has been killed by Ram Singh because there is enmity with regard to dispute of truck, therefore, action may be taken against the accused respondent. 4. Upon aforesaid statement of PW/1 Babu Lal, FIR was registered and thereafter, regular investigation was commenced. 5. In the investigation, body of deceased was sent to hospital for postmortem and in the investigation, after seven days, respondent Mohan Singh was arrested and upon his information under Section 27 of Evidence Act Ex.P/28, one sword was recovered from the house of respondent Mohan Singh vide Ex.P/17 and site plan Ex.P/8 of place where sword was recovered was prepared. The clothes of deceased were also taken into custody vide Ex.P/21 and from the place of occurrence, blood stained mud was taken vide Ex.P/22 and Ex.P/23, P/24 & P/25 and vide Ex.P/26 three nylon slippers and one cover of kripan (Myan) was taken into possession. All the articles were sent to FSL and in return FSL report Ex.P/31 was received. 6. In the investigation, after postmortem, postmortem report Ex.P/12 was obtained from the hospital and before sending all the articles to FSL, the articles were deposited in the Malkhana. 7. The Investigating officer after completion of investigation filed challan under Section 302 IPC in the court of Additional Chief Judicial Magistrate, Sriganganagar from where the case was committed to the court of Sessions Judge, Sriganganagar. 8. Learned Sessions Judge after framing charge against the respondent Mohan Singh granted an opportunity to the prosecution to lead evidence. From the prosecution side, statement of 17 witnesses were recorded and thereafter, statement of respondent no. 1 Mohan Singh were recorded but he denied all the allegations levelled by the prosecution witnesses. 9. Learned trial court after recording evidence of the case, finally heard arguments and vide judgment dated 20.03.1991 acquitted the accused respondent Mohan Singh from the charges levelled against him. 10. Learned Public Prosecutor vehemently argued that judgment impugned is illegal and contrary to the evidence on record because learned trial Judge interpreted the evidence in his own way whereas, there is ample oral and documentary evidence on record to prove the case of murder under Section 302 IPC, therefore, the finding arrived at by the learned trial court is not sustainable. Learned Public Prosecutor further submits that deceased Ram Kumar was having illicit relation with wife of Mohan Singh and in the statement of PW/1 Babu Lal, he has categorically stated the said fact, therefore, the said motive itself is sufficient to prove the case against the respondent Mohan Singh but learned Sessions Judge committed an error of law in disbelieving the evidence of PW/1 Babu Lal. It is also argued that respondent after killing Ram Kumar went at the shop of Mangat where his brother-in-law Gurdev Singh was working as Tailor and made extra judicial confession and this fact is proved by Manga Ram PW/6 who was independent witness, therefore, learned Sessions Judge has committed a grave error to disbelieve the testimony of Mangat Ram PW/6 who has categorically proved the fact of extra judicial confession. 11. Learned Public Prosecutor while inviting attention to the FIR, it is submitted that in the FIR name of Dharma, Ram Singh and one unknown person is disclosed as an accused but after thorough investigation, Dharma and Ram Singh were found innocent but respondent was found actual culprit, therefore, the evidence of witness Ram Singh PW/4 and PW/5 Dharma is sufficient to connect the respondent with the crime. 12. Learned Public Prosecutor submits that Mangat Ram PW/6 is Brahmin by caste and deceased is Dhanak by caste and there is no enmity against the respondent, therefore, his evidence has wrongly been discarded by the learned Sessions Judge, therefore, it can be said that prosecution has proved its case beyond reasonable doubt by leading oral evidence and circumstantial evidence so also the recovery of sword at the instance of respondent, therefore, the impugned judgment may kindly be quashed and respondent may be convicted for offence under Section 302 IPC. 13. Per contra, learned counsel for the respondent vehemently submits that admittedly the author of FIR PW/1 Babu Lal is real brother of deceased and in the FIR, he has specifically named three persons Dharma, Ram Singh and one unknown person but it is very strange that Ram Singh and Dharma against whom allegations were levelled in the FIR by author of FIR are produced as witness to prove the prosecution case. The name of respondent Mohan Singh was not even mentioned in the FIR and there is no evidence on record with regard to identification of respondent Mohan Singh, therefore, whole basis of prosecution case is unfounded, therefore, learned trial court while taking consideration and discussing entire evidence gave finding that prosecution has failed to prove its case against the respondent Mohan Singh, therefore, he is to be acquitted of the charged levelled against him. 14. While inviting attention towards the finding of learned trial court for acquittal, it is submitted that trial court has disbelieved the testimony of PW/1 Babu Lal stated by him in subsequent statement recorded under Section 161 Cr.P.C. FIR was registered on the basis of statement of PW/1 Babu Lal in which he specifically alleged that there was enmity in between Ram Singh and his brother with regard to vehicle Truck upon which the brother took Rs. 2 lac as loan and Ram Singh gave his surety on his behalf meaning thereby, when specific allegation is levelled by brother of deceased Babu Lal in the FIR and in the statement as PW/1, then how it can be presumed that deceased was murdered by respondent Mohan Singh for other motive. It is also stated that there is no evidence on record to prove the fact that respondent Mohan Singh came on spot abruptly. Learned Trial Judge has rightly discussed entire oral evidence and circumstantial evidence and found that prosecution has failed to prove its case beyond reasonable doubt, therefore, the instant appeal may be dismissed. 15. It is also stated that there is no evidence on record to prove the fact that respondent Mohan Singh came on spot abruptly. Learned Trial Judge has rightly discussed entire oral evidence and circumstantial evidence and found that prosecution has failed to prove its case beyond reasonable doubt, therefore, the instant appeal may be dismissed. 15. After hearing learned counsel for the parties we have perused the FIR ExP/1 which reads as under:- " Jh ckcwyky iq= Jh xksiky] tkfr&/kkud] mez 32 o"kZ] fuoklh&v'kksd uxj] Jh xaxkuxj us c;ku fd;k fd eSa o esjk cM+k HkkbZ jkedqaoj ;gha v'kksd uxj esa ,d gh edku esa jgrs gSa vkt lka; djhc 7 1@2 cts /kekZ iq= fjNiky /kkud o jkeflag iq= ekbZyky /kkud esjs HkkbZ jke dqaoj ds ikl ?kj ij vk;s rhuksa vkil esa ckrsa djus yxs jke flag 'kjkc lkFk yk;k Fkk ftls ihus yxs esjh rch;r [kjkc gksus ls eSa ?kj ls pkjikbZ ls mBdj fnus'k dh nqdku dh rjQ pyk x;k djhc 9 cts fnus'k dh nqdku ij fMLisUljh ds vgkrs dh rjQ jksyk lquk rks eSa m/kj x;k rks jkLrs esa ,d vkneh feyk ftlus crk;k fd fdlh dks ekj fn;k gS HkhM+ bdV~Bh gks jgh gS eSa ;gka vk;k rks HkhM+ bdV~Bh Fkh esjk HkkbZ jke dqaoj ejk iM+k Fkk mlds flj ls [kwu fudy jgk Fkk ogka [kM+s gehn iq= bczkfge rFkk fcyw mQZ ujs'k vjksM+k us crk;k fd vHkh jkedqaoj dks /kekZ] jkeflag /kkud o ,d vU; vkneh ryokj ls ekj dj [kqn x;k /kekZ vius ?kj dh rjQ iSny Hkkxdj x;k gSA jkeflag o ,d vkneh lkbZfdy ls ekSle foHkkx dh rjQ Hkkx x;s ge yksx /kekZ ds ?kj dh rjQ x;s rks ogka /kekZ dks 4 ckfyx us mlds ?kj ls idM+ dj ckgj fudky fy;k Fkk o ekjihV dj jgs Fks eq>s esjh HkkHkh vaxqjh us crk;k fd /kekZ jke flag o esjs HkkbZ jkedqaoj us gekjs ?kj ij 'kjkc ihus ds ckn [kkuk [kk;k esjk HkkbZ [kkuk [kk gh jgk Fkk jkeflag us esjs HkkbZ dks fiDpj esa pyus ds fy;s dgk esjh HkkHkh us euk dj fn;k rks /kekZ o jke flag esjs HkkbZ jkedqaoj dks ;g dgdj ?kj ls ys x;s gesa euk dj fn;k rks /kekZ o jkeflag esjs HkkbZ jkedqaoj dks ;g dgdj ?kj ls ys x;s gesa ehjk pkSd rd NksM+ vk esjs HkkbZ dks tku ls ekjus dh fu;r ls ?kj ls ys vk;s o ;gka vkdj esjs HkkbZ dh gR;k dj nh esjs HkkbZ jkedqaoj o jkeflag ds chp dkQh fnuksa ls V~d ds ekeys esa >xM+k py jgk Fkk dk;Zokgh Qjekosa esjs HkkbZ dh yk'k ekSdk ij gh iM+h gSA " 16. Upon perusal of FIR lodged on the statement of PW/1 Babu Lal, brother of deceased, it is revealed that there is no allegation against the respondent Mohan Singh so also name of Mohan Singh is not mentioned in the FIR. More so, specific allegations are levelled against Dharma and Ram Singh. The Motive is also disclosed in the FIR but it is very strange that without any evidence, the investigating officer arrested the respondent Mohan Singh after seven days and while recording statement of Dharma and Ram Singh under Section 161 Cr.P.C being eye-witness filed charge sheet against the respondent. We have also perused the postmortem report in which the doctor PW/10 Dr. Kailash Nath Markandey has stated that postmortem was conducted by him and in the postmortem Ex.P/12, incised wounds were found. We have perused the injury report and considered the facts narrated in the statement of Babu Lal upon which FIR Ex.P/1 was registered. Upon consideration of entire allegation made by author of FIR, it is revealed that occurrence took place in between 8-9 PM and when PW/1 Babu Lal left the house, three persons were sitting with the brother namely Dharma, Ram Singh and one unknown person and they were taking liquor and in the FIR, he has made allegation against them but it is very strage that in the investigation, the statement of both the persons were recorded under Section 161 Cr.P.C. and they were produced as prosecution witness and now it is argued on behalf of the State that testimony of these persons may kindly be accepted so as to held the respondent Mohan Singh guilty for offence. In our opinion, the said argument is totally unfounded and have no foundation to stand. We have considered the arguments against acceptance of evidence of extra judicial confession. PW/6 Mangal Ram is the witness to prove the fact of extra judicial confession. Mangat Ram has stated in his examination in chief that on 23.04.1990 when he was in his shop at 9:30 PM, Mohan Singh came at his shop and asked his brother law Gurdev Singh who was working as employee on his shop that I have killed Ram Kumar by sword and asked Gurdev Singh that take your sister and immediately rush to the village otherwise your sister will be killed by the complainant party. At that time, Gurdev Singh left the shop and came back with his sister and two daughters. 17. Upon consideration of statement of PW/6 Mangat Ram, we find that said witness Mangat Ram stated about conversation in between Gurdev Singh brother-in-law of respondent Mohan Singh and Gurdev Singh but Gurdev Singh appeared before the Court as PW/7 but turned hostile and did not support the story narrated by PW/6 Mangat Ram meaning thereby, the trial court has rightly discredited the prosecution evidence with regard to extra judicial confession. 18. We have also considered the fact of recovery of sword at the instance of respondent Mohan Singh so also the finding given by the trial court. The trial court observed that there is no evidence on record to connect the respondent Mohan Singh with the crime in spite of that, he was arrested after seven days of the incident on 30.04.1990. Admittedly, sword was recovered at the information given by respondent Mohan Singh under Section 27 of Evidence Act but it is very strange that on the spot, the cover of Kripan was recovered. The trial court gave finding that it is beyond imagination that an accused will put blood stained sword in his house after committing offence of murder. Trial court observed that if the prosecution story is accepted that cover (Myan) was thrown by the respondent on the spot then question arises why the accused left sword with him. We completely agree with the finding given by the trial court because as per prosecution case, incident took place in between 8-9 PM that too near the house of the deceased at 8 PM. When PW/1 author of FIR Babu Lal left the house, three persons were sitting with the deceased and taking liquor. 19. In view of above, it is a case in which prosecution has tried to concoct a story so as to connect the respondent Mohan Singh with the crime but independent evidence is altogether different. We have also examined the statement of PW/2 Anguri Devi, wife of deceased. 19. In view of above, it is a case in which prosecution has tried to concoct a story so as to connect the respondent Mohan Singh with the crime but independent evidence is altogether different. We have also examined the statement of PW/2 Anguri Devi, wife of deceased. The said witness gave following statement which reads as under:- " djhc nks eghus igys dh ckr gSA ?kj ij eSa o esjk ifr jkedqekj ?kj ij FksA jkeflag o /kekZ esjs ?kj ij vk,A 'kke dks lkr&lok lkr cts dk le; FkkA jkeflag esjs ifr ds ekes dk yM+dk HkkbZ gSA jkeflag ds ikl lkbZfdy Fkh og mlds edku dh nhokj ds ikl [kM+h dj nh FkhA jkeflag 'kjkc Hkh yk;k FkkA fQj jkeflag o /kekZ gekjs edku ds vanj vk x;sA esjs ifr ls V~d dkxtkr ds ckjs esa jkeflag us ckrphr dh jkeflag us dgk Fkk fd mlds dkxtkr mls fnyok nksA esjs ifr us dgk fd ,d nks fnu ckn mlds dkxtkr fey tk;saxsA eq>s ekywe ugha fd og dkxtkr dgka ij FksA fQj eSa [kkuk cukus yx x;h vkSj ;g rhuksa 'kjkc ihus yx x;sA igys jkeflag o /kekZ us Hkkstu fd;k] esjs ifr us vk/kk [kkuk [kk fy;k FkkA jkeflag dgus yxk fd fiDpj pysaxsA eSaus dgk fd jkr dk VkbZe gS blfy, fiDpj ugha tkuk gSA fQj jkeflag us esjs ifr ls dgk fd mUgsa lM+d rd NksM+ vk] fQj esjk ifr mu nksuksa ds lkFk ?kj ls py fn;kA brus esa nks vkSjrsa ftuesa ,d fceyknsoh vkSj nwljh d'".kk nsoh Fkh vk;hA bu rhuksa ds ?kj ls tkus ds djhc nl feuV ckn ;g nksuksa vk;hA bu nksuksa us eq>s vkokt nsdj ckgj cqyk;k os cksyh fd lM+d ds mij ,d vkneh iM+k gS] blfy, rw igpku dkSu gS D;ksafd mUgsa ;g yxrk gS fd og rsjk ifr gks ldrk gSA eSa x;h rks eSaus ns[kk fd esjk ifr vksa/kk iM+k Fkk vkSj flj ls [kwu fudy jgk FkkA ogka ij vkSj dksbZ vkneh ugha Fkk] eSaus vius ifr dks tkdj fgyk;k Mqyk;k rks os ugha cksys u fgys Mqys rks eSaus tksj ls fpYydkjh ekjh fQj ogka lkjk eksgYyk bdV~Bk gks x;k vkSj esjk nsoj ckcwyky Hkh ogka vk x;kA esjs nsoj us iwNk fd D;k gqvk rks eSaus crk;k fd jkeflag vkSj /kekZ ?kj ls muds lkFk fudys FksA ogka ij ,d E;ku iM+h Fkh] rhu pIiysa Hkh iM+h FkhA fQj ogka HkhM+ bdV~Bh gks x;h FkhA jkeflag o /kekZ ij eq>s 'kd Fkk blfy, mldk uke fy[kk fn;kA " 20. Upon perusal of above statement of the wife of deceased, we are of the opinion that on the basis of aforesaid statement, it cannot be said that any enmity was in between the deceased and respondent Mohan Sigh Moreover, the said witness stated before the Court that her husband was taken from her house by witnesses Ram Singh and Dharma. The above statement of Anguri Devi complete destroy the prosecution case because she is the wife of deceased Ram Kumar and she was present in the house when Dharma and Ram Singh along with third unknown person took her husband from the house. 21. On the basis of above discussion, we are of the opinion that the finding given by the trial court that prosecution has failed to prove its case beyond reasonable doubt against respondent Mohan Singh does not require any interference. Hence, this appeal filed by the State against the judgment dated 20.03.1991 is hereby dismissed.Appeal dismissed. *******