ORDER
V.K. Bali, J.
1. In this Criminal Appeal No. 139-DB of 1997 appellant Satbir calls in question the orders passed by Mr. P. L. Goyal, Additional Sessions Judge, Sonepat dated 29-11-1996 and 2-12-1996 convicting him under S. 302 of the Indian Penal Code and sentencing him to undergo R.I. for life and to pay a fine of Rs. 2,000/- or in default thereof to further undergo R.I. for a period of one year.
2. The prosecution version was unfolded by Ramkesh PW-4. He reported the matter with regard to Brahme missing from his house since 2-1-1995. He made a statement before Man Singh SI/S. H.O.P.W. 9 at Police Station, Rai on 21-1-1995 at 10-50 a.m. He stated that he was residing in village Manauli Tonki and was doing labour work. They were six brothers. Birbal was the eldest and Brahme aged 45 years was younger to him and he also did labour work. Satbir son of Sameran, Jat by caste, resident of Puthi district Meerut had been residing with his family in his village for the last four months and was also doing labour work. On 2-1-1995 at about 10 a.m., his brother Brahme had accompanied Satbir to U.P. for purchase of buffalo. His brother had accompanied Satbir after taking Rs. 12,000/- from his house. On 3-1-1995 Satbir came back to their village but his elder brother Brahme was not with him. When he enquired about his brother, then Satbir told him that he had gone to purchase a buffalo and would come back by morning. On 3-1-1995 at night Satbir had disappeared along with his family members from the village. They had made a search of their brother Brahme till date and enquired from all the relatives but all in vain. He stated that he had a suspicion that Satbir being in league with some other persons had killed his brother or had hidden him out of greed for Rs. 12,000/-.
3. Before we might proceed any further with this matter, it required to be mentioned that appellant-Satbir was tried with co-accused Virender Singh who has since been given the benefit of doubt and acquitted of the murder charge framed against him.
4. With a view to substantiate its case, the prosecution examined Dr. O. P. Aggarwal P.W. 7 who on 22-1-1995 at about 2-00 p.m. conducted post-mortem examination on the dead body of Brahme and found the following injuries :-
1. Contusion 7 x 4 cms on the left side of the head (temporal region 2 cms above the left ear). Underneath the scalp a big haematoma was present with a fracture of left temporal underneath.
2. A contusion 5 x 3 cms on the right side of temporal region 1 cm above and in front of the right ear. Haematoma was present underneath.
3. Contusion 4 x 2 cms on the left upper outer chest 2 cms inner to left anterior axillary fold.
5. All the injuries were ante-mortem in nature. In the opinion of the doctor the cause of death was coma as a result of the injuries. Death might have occurred some two weeks prior to the post-mortem examination.
6. P.W. 1 Prithi Singh Sub-Inspector only stated that on 11-2-1995 he was posted as SHO in Police Station, Rai and on the said date he had prepared the report under S. 173 of the Code of Criminal Procedure, Rajesh Kumar, Draftsman who appeared as P.W. 2 deposed with regard to his preparing scaled site plan Ex. PA. Constable Ranbir Singh who was examined as PW-3 stated that on 21-1-1995 when he was posted at Police Station, Rai, he was handed over the FIR which he further handed over to the Ilaqa Magistrate, DSP and S.P. in time. PW-4 Ramkesh, the first informant and brother of deceased Brahme deposed in tune with the FIR lodged by him. It, however, requires to be mentioned that in examination-in-chief he stated that he had lodged the FIR on 21-1-1995 and that two days thereafter on 21-1-1995 (23-1-1995) appellant Satbir was arrested by the police and he was interrogated in his presence. Satbir made disclosure statement Ex. PE in which he stated that dead body of Brahme was concealed in Gobar Gas plant in the area of village Sadiqpur and the amount of Rs. 12,000/- was kept by his co-accused Virender and that he could get the same recovered. Pursuant to the disclosure statement, police got recovered the dead body of Brahme from the Gobar Gas plant on the same day and the same was taken into custody vide memo Ex. PF. In cross-examination he stated that he was late in lodging the FIR as he went on tracing his brother with his relations and Satbir was arrested two days after the case was registered against him. He was interrogated in village Benoli in U.P. at about 11.00 a.m. He was interrogated for about one and a half hours and practically whole of the village Benoli was present when the dead body was recovered from the Gobar Gas plant. The roof of Gobar Gas plant was demolished by an iron ghan. He further stated in his cross-examination that in the past Brahme had never purchased any buffalo from U.P. Savitri Devi widow of Brahme-deceased was examined as PW. 5. She stated that on 2-1-1995 the appellant had taken his husband with him for purchasing a buffalo in U.P. and her husband had taken a cash amount of Rupees 12,000/- with him. When appellant Satbir Singh came back next day, he told him that her husband was to return after purchasing the buffalo and that on the night itself he left the village. In her cross-examination, she stated that Ramkesh was not present in the house when Brahme was taken by Satbir-accused and, in fact, she had told Ramkesh about his departure. She further stated that her husband had never gone to U.P. to purchase buffalo and she did not know as to when the appellant was arrested. Ramesh son of Mam Chand another brother of deceased Brahme was examined as P.W. 6. Inasmuch as his statement has nothing to do with the present appellant as he only deposed with regard to Virender Singh co-accused of the appellant who has since been acquitted, there is no need to give any details of the statement made by him before the Court. The prosecution also examined P.W. 8 Duli Chand, maternal uncle of the deceased. He stated that on 21-1-1995 when he and Ramkesh had accompanied the police to village Puthi appellant Satbir Singh was not available there. Ramkesh had then spotted the appellant at bus-stand of village Benoli. He was apprehended by the police and interrogated in their presence. He made disclosure statement Ex. PE wherein he stated that he and Virender Singh had put the dead body of Brahme in Gobar Gas plant and that nobody else knew about it and that he could get the same recovered. They then went to village Sadiqpur where the said Gobar Gas plant was situated. It was at a distance of about 70/80 Kms from Benoli. Upon the demarcation of Satbir, Gobar Gas plant was demolished and dead body was recovered which was of Brahme. In his cross-examination he stated that he knew the accused prior to 21-1-1995. Appellant Satbir was interrogated on 21-1-1995 and large number of persons had gathered at the time of interrogation. Almost the entire Sadiqpur village was present at the time when the recovery of the dead body was made. The Gobar Gas plant was openly accessible to all. He also stated that they had come to know about the dead body of Brahme after the arrest of appellant-Satbir and not earlier. P.W. 9 SI/SHO Man Singh detailed the steps that he had taken while investigating the case.
7. When, examined under S. 313 of the Code of Criminal Procedure, appellant-Satbir Singh while denying the incriminating material put to him further stated that he was doing labour work in village Manoli Toki and had been falsely implicated in the case on the basis of suspicion. He was innocent and the witnesses were making false statements. He led no evidence in defence.
8. A perusal of the prosecution evidence as has been discussed above would show that the prosecution with a view to secure conviction relied upon only on circumstantial evidence. Has the prosecution led such an evidence, the appreciation whereof would lead to the irresistible conclusion that the appellant alone was responsible for causing death of Brahme is, thus, the question that needs to be adjudicated in this case.
9. We have heard Mr. S. S. Ahlawat, learned counsel representing the appellant and Mr. N. K. Sanghi learned D.A.G. representing the State of Haryana and with their assistance we have gone through the records of the case. We are of the firm view that the chain of circumstances in the present case is not such that may lead to the only conclusion that the appellant alone was responsible for causing the death of Brahme and, therefore, the appellant deserves to be acquitted by giving him the benefit of doubt. It is rather strange to note that even though Brahme had gone to purchase a buffalo with the appellant on 2-1-1995 and had not returned along with the appellant on the next day, no FIR came to be lodged till 21-1-1995 particularly when the appellant had left the village on the night when he returned from U.P., thus, raising a suspicion that he might have caused some harm to Brahme. It may be recalled that it has been stated by the first informant and the wife of Brahme that the appellant had left the village at night when he alone returned from U.P. True, it was natural for the first informant and the wife of Brahme to locate Brahme and make inquiries with regard to his whereabouts from friends and relations but surely in the facts and circumstances of this case, there was no question for them to have taken 20 days in lodging the report to the police. It is further strange to note that FIR came to be lodged on that very day i.e. 21-1-1995 when the appellant was arrested and when the dead body was also taken into possession allegedly on the disclosure statement made by the appellant.
10. In so far as the disclosure statement made by the appellant is concerned, we are of the view that the same does not inspire any confidence. The appellant is stated to have made disclosure statement before the first informant, real brother of the deceased and Duni Chand, maternal uncle of the deceased who was examined as P.W. 8. Both the prosecution witnesses stated that at the time when the appellant was interrogated for half an hour, practically all the residents of village Benoli were present. If at a time when the appellant was interrogated or at a time when dead body of Brahme was recovered and when the entire village had collected, why prosecution chose to examine those who are closely related to the deceased and not those who could be independent witnesses. If the disclosure statement made by the appellant is disbelieved, the only evidence that prosecution is left with is of last seen. We do entertain doubt about that piece of circumstantial evidence led by the prosecution as well. As mentioned above, if the wife and brother of the deceased had seen him going with the appellant, there was no question for them to have waited for as many as 20 days to lodge the FIR when the appellant returned in the village the very next day and when Brahme was not being traced even though frantic efforts were made to locate him. Further, doubt arises on this piece of evidence as, the appellant along with his family is stated to have left the village at night when he arrived alone in the village. If the appellant had actually left the village with his family, a suspicion ought to have arisen immediately. Recovery of dead body at the instance of the appellant from Gobar Gas Plant which according to the prosecution version could be recovered only after the demolition of the Gobar Gas Plant by an iron ghan also appears to be doubtful.
11. We are of the view that the prosecution led no credible evidence to link the appellant with the commission of the crime alleged against him and therefore, the trial Judge was not justified to convict him for the charge framed against him.
12. We, thus, allow this appeal and set aside the order of conviction and sentence recorded against the appellant by the trial Judge and acquit him. The appellant be set at liberty if not required in any other case.
13. Appeal allowed.