JUDGMENT 1. - The instant cr. appeal under Section 374 Cr.PC. has been filed by the accused appellant Ravji S/o Onkar against the judgment dated 6.1.2006 passed by the learned Sessions Judge (Fast Track), Banswara in Sessions Case No.64/2005 whereby the learned trial court convicted the accused appellant for offence under Section 302 IPC and passed sentence for life imprisonment along with fine of Rs. 1000/- and in default of payment of fine to further undergo 3 months RI and for offence under Section 397 passed sentence for 7 years SI and under Section 449 IPC sentence for 5 years SI and to pay a fine of Rs. 1000/- and in default of payment of fine to further undergo three months SI. 2. As per the facts of the case on 25.2.2005 the complainant Magan Lal PW-15 submitted a first information report to the SHO, Police Station, Lohariya, District Banswara stating therein that they are two brothers and his younger brother Mitha Lal is living separately and his mother aged about 80 years is also living in their parental house. The younger brother was providing meals to his mother Kesar. The son of Mitha Lal, Gajendra used to sleep in his mother's house with his grand-mother. Last night as per daily routine his mother and Gajendra S/o of his brother slept in the house in the night but in the morning at about 7.00 a.m. Gajendra left the house of his grand-mother and came back to his house from where Smt. Babali W/o Mitha Lal brother of the author of the FIR went to the house of Smt. Kesar to provide tea where she saw that her mother-in-law is sleeping on a cot and upon removing Rajai she found injuries upon the body of Smt. Kesar, mother-in-law. Smt. Babali immediately called her husband Mitha Lal and Magan Lal (author of the FIR) and upon calling they went to the house of mother where they found that their mother died due to serious injuries sustained to her by unknown person and silver ornaments which deceased Smt. Kesar used to wear were not found upon her body. As per the allegation in the FIR, some unknown person murdered his mother and stole the silver ornaments from the body of his mother. 3. Upon aforesaid complaint, the SHO, Police Station, Lohariya registered the FIR no. 17/2005 and commenced the investigation. As per the allegation in the FIR, some unknown person murdered his mother and stole the silver ornaments from the body of his mother. 3. Upon aforesaid complaint, the SHO, Police Station, Lohariya registered the FIR no. 17/2005 and commenced the investigation. The Investigating Officer, after recording evidence under Section 161 Cr.RC. and making recovery from the accused appellant arrested him vide Ex.P/26 and after recovery of ornaments and sword from him upon his information under Section 27 of the Evidence Act, filed charge-sheet against the accused appellant for offences under Section 449, 302 and 397 IPC in the court of Judicial Magistrate, First Class, Gadi from where the case was committed to the District & Sessions Judge, Banswara and later on case was transferred by the District & Sessions Judge, Banswara to the court of Addl. Sessions Judge (Fast Track), Banswara. 4. The learned trial court framed the charge under Sections 449, 302 and 397 IPC against the accused appellant and proceeded to record the evidence of prosecution witnesses and in this sequence recorded statements of 20 prosecution witnesses and 31 documents were exhibited in the trial. In the trial after recording prosecution evidence, the learned trial court recorded statement of accused appellant under Section 313 Cr.RC. in which he said that he is innocent and no offence has been committed by him. It is also stated that no information was given by him under which recovery of sword and ornaments are made. The police while giving threat took the thumb impression upon the paper from him but no offence of murder is committed by him. No evidence is produced by the accused appellant in defense. 5. The learned trial court after hearing both the parties finally convicted the accused appellant for the offences under Section 449, 302 and 397 IPC and passed the above sentence vide judgment dated 6.1.2006. 6. In this appeal, the appellant is challenging the validity of finding given by the learned trial court whereby accused appellant was convicted under Sections 339, 302 and 397 IPC. 7. The learned counsel for the appellant vehemently argued that learned trial could has committed a gross error of law to convict the accused appellant for aforesaid offences because prosecution has failed to prove recovery of ornaments and sword. 7. The learned counsel for the appellant vehemently argued that learned trial could has committed a gross error of law to convict the accused appellant for aforesaid offences because prosecution has failed to prove recovery of ornaments and sword. In support of his argument, it is submitted that PW-1 Sajjan Singh, PW-2 Taran Chand and PW-3 Shanker Lal, witnesses of recovery of ornaments and sword turned hostile in the trial and did not support the prosecution case to prove the recovery from accused appellant. Further. I submitted that the witness PW-4 Bahadur turned hostile before whom the alleged extra-judicial confession was made by the accused appellant, therefore, the conviction of the accused appellant upon the so called recoveries of ornaments as well as sword is not acceptable because none of the prosecution witnesses proved recovery and turned hostile in the trial. 8. The learned counsel for the appellant submits that 3 witnesses PW-16 Mitha Lal S/o of deceased, PW-17 Smt. Babali made allegations in their statements during trial that PW-18 Gajendra Kumar who was usually sleeping with deceased informed that accused appellant caused injuries to his grand-mother Smt. Kesar in the night by sword and this fact was disclosed by him soon after the occurrence to the mother PW-17 Smt. Babali and this fact was disclosed by her to Magan Lal, the elder brother of her husband but in FIR filed by Magan Lal PW-15, no allegation was made by him in the FIR and in the trial it was submitted that the injuries were caused by the accused appellant. More so, FIR was filed by him against unknown person. The learned counsel for the appellant further argued that in the statement under Section 161 Cr.P.C. recorded in the investigation none of the prosecution witnesses made allegation against the accused appellant with regard to inflicting injury by sword by the accused but in the court PW-16 Mitha Lal, PW-17 Smt. Babali. PW-18 Gajendra improved their statements and made allegation of inflicting injury by the accused appellant in the night, therefore, the conviction cannot be based upon improvement in statement of prosecution witnesses. 9. The learned counsel for the appellant lastly argued that prosecution has miserably failed to prove its case beyond reasonable doubt. PW-18 Gajendra improved their statements and made allegation of inflicting injury by the accused appellant in the night, therefore, the conviction cannot be based upon improvement in statement of prosecution witnesses. 9. The learned counsel for the appellant lastly argued that prosecution has miserably failed to prove its case beyond reasonable doubt. More so, in whole | of the investigation no allegation was levelled by any of the witnesses, who are family members of the deceased Kesar and accused appellant for causing injuries and due to those injuries, deceased Kesar died but in the Court they made allegation of murder against the accused appellant, therefore, the conviction and sentence awarded to the accused appellant deserves to be set aside because the testimony of these witnesses is not trustworthy and reliable, the accused appellant has been implicated falsely in this case, therefore, the judgment impugned may be quashed. 10. Per contra, the learned Public Prosecutor vehemently argued that prosecution has proved its case beyond reasonable doubt by leading reliable evidence. PW-18 Gajendra, who was 13 years of age on the date of occurrence has categorically stated in the statement during trial that the injuries were inflicted by the accused appellant to his grant-mother Smt. Kesar in the night on the date of occurrence and this fact was disclosed by him to his mother PW-17 Smt. Babali in the morning and mother Smt. Babali stated in the statement that said information was given by her son Gajendra in the morning and later on aforesaid fact was disclosed to her husband Mitha Lal and Mitha; Lal PW-16 categorically stated in his statement in the Court that as per information given by PW-18 Gajendra the accused appellant caused injury and : his mother died, therefore, it cannot be said that prosecution has failed to prove its case beyond reasonable doubt. The learned Public Prosecutor; further argued that although the witnesses of recovery of sword and ornaments turned hostile before the court but Investigating Officer categorically stated in his statement that recovery was made from the accused appellant as per his information given under Section 27 of the Evidence Act therefore, it is a case in which prosecution has proved the fact of recovery of weapon sword and silver ornaments of the deceased from accused appellant. Therefore, there is no question to say that the learned trial court has committed any wrong while holding the accused appellant guilty for the alleged offence. The learned Public Prosecutor lastly argued that it is a case in which an innocent old lady was murdered only for some silver ornaments by the accused appellant, therefore, no interference is called for in the finding given by the learned trial court in convicting the accused appellant for offences under Sections 302, 397 and 449 IPC. Hence, this appeal may be dismissed. 11. After hearing the learned counsel for the accused appellant and learned Public Prosecutor, we have minutely scanned the evidence and considered the case on merits. It is not in dispute that hand written complaint (Ex.P/24) was filed by none-else than son of the deceased PW-15 Magan Lal in which no allegations were leveled by him against accused appellant. 11. After hearing the learned counsel for the accused appellant and learned Public Prosecutor, we have minutely scanned the evidence and considered the case on merits. It is not in dispute that hand written complaint (Ex.P/24) was filed by none-else than son of the deceased PW-15 Magan Lal in which no allegations were leveled by him against accused appellant. The following written complaint (Ex.P/24) was submitted by the PW-15 Magan Lal, which reads as under: " lsok esa] Jheku~ Fkkukf/kdkjh egksn; Fkkuk & yksgkfj;k ft&ckalokM+k izkFkhZ & exuyky firk iqth;k tks tkfr cuqdj fu0 lqUnuh] Fkkuk yksgkfj;kA egksn; th] eq> izkFkhZ dh bl izdkj fuosnu gS fd ge nks HkkbZ gSaA ,d esjs ls NksVk gks feBkyky uke gSA ge nksuksa vyx&2 jgrs gSaA esjh ekWa Jhefr ds'kj mez djhc 80 o"kZ csok gksdj iqjkus edku esa gh jgrh gSA og ges'kk gekjs iqjkus edku esa gh lksuk jguk djrh FkhA esjh ekWa dks ges'kk esjs NksVs HkkbZ ds ?kj ls [kkuk cukdj fn;k tkrk FkkA rFkk feBkyky dk NksVk yM+dk xtsUnz mez djhc 13 lky dk vkdj jkr dks ikl esa lksrk FkkA ges'kk ds eqrkfcd dy xq:okj dh 'kke dks pkoy cukdj [kkus ds fy, fn;s o [kkuk [kkdj esjh ekWa lks xbZA o ikl esa xtsUnz Hkh vkdj lks;k FkkA vkt lqcg djhc 7 cts xtsUnz mBdj ?kj pyk x;kA o feBkyky dh iRuh Jhefr ccyh nsoh pk; nsus esjh ekWa ds ikl vkbZA rks iM+lky esa esjh ekWa [kkV ij lksbZ gqbZ o mij xksnM+h vks<+h gqbZ Fkh tks feBkyky dh iRuh us txkus ds fy, eqWag ls xksnM+h gVkbZ rks vpkud ns[kk vka[k ds mij xgjk ?kko gks [kwu fudyk iM+k FkkA og e`r voLFkk esa ns[k eq>s o HkkbZ feBkyky dks cqyk;kA ge nksuksa vk;sA o ns[kk rks esjh ekWa ejh gqbZ [kkV ij iM+h Fkh o vk[kksa ds mij o eqWag ij nks yEcs /kkjnkj gfFk;kj ds ?kko xgjs gks [kwu fudy tek gqvk FkkA ftcku dVdj ckgj vkbZ gqbZ FkhA geus mlds 'kjhj ij ns[kk rks nksuksa iSjksa ds pkWanh ds dM+s ugha FksA tks [khapdj fudkyus ls dM+ys iguus ds LFkku ij pksV ds fu'kku jxM+ ds cus gq, FksA o xys esa iguh pkWanh dh nksjM+h ugha FkhA vkt jkr dks dksbZ vKkr cnek'kksa }kjk esjh ekWa dh gR;k dj pkWanh ds dM+ys o nksjM+h pqjkdj ys x;sA bRryk djrk gwaA dk;Zokgh QjekosA fnukad 25-2-2005 izkFkhZ exuykyA " 12. We have also perused the statement of PW-15 Magan Lal in which no allegation is leveled by him against accused appellant more so it is stated by him that " esjs HkkbZ dh iRuh pk; dks ysdj esjs ekWa ds ikl xbZ FkhA mlus esjh ekWa dks vkokt ekjh rks esjh ekWa ugha mBhA esjh HkkbZ dh iRuh us esjh ekWa dks [kksydj ns[kk rks mlds pksVsa yxh gqbZ FkhA ftl ij eq>s cqyk;kA eSa ekSds ij x;kA esjs HkkbZ oxSjk Hkh vk;sA esjh ekWa ejh gqbZ FkhA esjh ekWa ds diky o vkWa[k ij pksV FkhA esjh ekWa iSj esa dM+s igurh FkhA esjs ekWa xys esa nksgM+h ( gkalyh ) igurh FkhA geus tc yk'k ns[kh rks mDr jdesa iguh gqbZ ugha FkhA ". It emerged from the evidence that before submitting written report (Ex.{/24) the said Magan Lal, author of FIR went on spot and met his brother Mitha Lal and his wife Smt. Babali but no allegation was leveled by them which is evident from the FIR. It emerged from the evidence that before submitting written report (Ex.{/24) the said Magan Lal, author of FIR went on spot and met his brother Mitha Lal and his wife Smt. Babali but no allegation was leveled by them which is evident from the FIR. It is also worthwhile to observe that in the statemeles of PW-16 Mitha Lal, second son of deceased, PW-17 Smt. Babali and PW-18 Gajendra Kumar under Section 161 Cr.P.C. no allegation was levelled by them during investigation against the accused appellant for inflicting injury by sword in the night and removing ornaments but in the trial all these witnesses made allegation that on the date of incident PW-18 Gajendra aged about 13 years was sleeping in the house of deceased Kesar and he saw the incident that accused appellant inflicted injury by sword but in the cross examination, a question was put to Gajendra in the cross-examination whether you have disclosed the fact of inflicting injury by the accused appellant to the police in his statement, then he said " iqfyl us esjs c;ku fy, ml le; esjs eu esa dksbZ Mj ugha FkkA ;g lgh gS fd eSaus iqfyl c;ku izn'kZ&Mh01 esa jkoth }kjk ?kVuk dh jkr ryokj ysdj ekSds ij vkuk vkSj esjh nknh ekWa ij ryokj ls okj dj mldh gR;k dj nsuk eSaus ugha fy[kk;kA ;g lgh gS fd eSaus iqfyl dks ;g Hkh c;ku ugha fn;k Fkk fd eSa ekSds ij csgks'k gks x;kA iqfyl c;ku izn'kZ Mh0 1 dk , ls ch fgLlk eSaus ugha fy[kk;k FkkA iqfyl c;ku izn'kZ Mh01 dk lh ls Mh Hkkx lquk ;g ckr eSaus iqfyl dks fy[kkbZ FkhA ;g xyr gS fd eSa esjs ?kj okys ds fl[kkus ij jkoth ds f[kykQ >wBs c;ku ns jgk gwWaA " 13. Meaning thereby, in the statements sole eye witness Gajendra recorded under Section 161 Cr.RC., no allegation was made by him about inflicting the injuries by the accused appellant. Meaning thereby, in the statements sole eye witness Gajendra recorded under Section 161 Cr.RC., no allegation was made by him about inflicting the injuries by the accused appellant. Likewise PW-17 Smt. Babali said in her statement that in the morning on 24.2.2005 her son Gajendra came back from the house of deceased Kesar and informed that accused appellant inflicted injury by sword and murdered her but this fact was not disclosed by the PW-17 Smt. Babali in the statement recorded under Section 161 Cr.P.C., therefore, in the cross-examination, a question was put to her and for which following reply is given which reads as under: " esjs iqfyl esa c;ku gq, FksA ;g lgh gS fd eSaus iqfyl c;ku esa ?kVuk dh jkf= dks jkoth }kjk esjs lklq ij ryokj ls okj djus dh tkudkjh xtsUnz ls izkIr gksuk crk fn;k FkkA ijUrq iqfyl c;ku izn'kZ Mh0 3 es ,slk vafdr ugha gSA ;g lgh gS fd mDr ckr eSaus vius >sB ekaxhyky mQZ exuyky dks Hkh crk nh FkhA ;g lgh gS fd iqfyl Fkkuk yksgkfj;k esa Hkh iqfyl us esjh lkl dh mijksDr nkuksa jdesa eq>s crk;k Fkk vkSj dgk Fkk fd jdesa fey xbZ gSA " 14. The above fact of disclosure of incident by the witness Gajendra was not mentioned in the statement of Smt. Babali recorded under Section 161 Cr.RC. but in the court it is stated by her that her son Gajendra informed her in the morning that accused appellant inflicted injury to his grand-mother Smt. Kesar. It is also relevant to observe here that in the cross-examination Smt. Babali PW-17 categorically said that the fact of inflicting injury by accused appellant was disclosed to the elder brother of her husband Magan lal, but Magan Lal author of the FIR did not make allegation against accused appellant in the report Ex.P/24 or in his statement in the Court as PW-18. 15. After considering the aforesaid evidence made by the alleged so called eye witnesses and other witness of the family of the deceased, we are of the opinion that it is beyond imagination that a son who filed report for murder of his mother will not disclose the fact of inflicting injury by accused appellant when other witnesses disclosed the fact of causing injuries by the accused appellant to the deceased Smt. Kesar much before filing written complaint by him. PW-15 Magan Lal who is author of the FIR neither made allegation in the written report (Ex.P/24) nor in the statement before the court, whereas he was present in the morning along with other witnesses, therefore, it is a case of improvement of evidence in the court by the witnesses to prove the allegation against the accused appellant. It is settled principle of law that it is the duty of the prosecution to prove its case beyond reasonable doubt but here is this case, in whole of the investigation, no allegation was leveled by author of the FIR PW-15 Magan Lal, PW-16 Mitha Lal, other son of the deceased, PW-17 Smt. Babali, daughter-in-law of the deceased and PW-18 Gajendra Kumar, grand-son of deceased and for the first time in the court they made allegation to implicate accused appellant for the alleged offence of murder. In view of the above, it can be said safely that prosecution has failed to prove its case beyond reasonable doubt because all the witnesses of recovery of sword and ornaments turned hostile before the court and testimony of alleged eye witnesses is also not trustworthy because for the first time he made allegation against the accused appellant in the court, therefore, the accused appellant is entitled for benefit of doubt. 16. In view of the above discussion we find that findings given by the learned trial court to convict the accused appellant for offences under Section 302, 397 and 449 IPC are not sustainable in law. Therefore, while giving benefit of doubt to the accused appellant, the judgment impugned dated 6.1.2006 passed by the learned Addl. Sessions Judge (Fast Track), Banswara in Sessions Case No.64/2005 is hereby quashed and set aside. The accused appellant Ravji S/o Onkar may be released forthwith if not needed in any other case. 17. Accordingly, this appeal is hereby allowed.Appeal allowed. *******